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Judgment
I.A. No.59/2018 (application for waiver of pre-deposit)
Appellant claims to be neither the borrower nor the guarantor nor the mortgagor in the present loan transaction. The appellant is claiming independent right as owner in respect of the property. Accordingly, the condition of pre-deposit is dispensed with. The application is decided accordingly.
Misc. Appeal No.34/2018
Arguments heard on present appeal.
S.A. applicant Prahlad Rai filed the present S.A. bearing No. 24/2015 through his attorney Mahindar Kumar Sharma who is the present appellant which is stated to be pending before DRT-III, Delhi. Prahlad Rai was stated to be expired on 18.07.2016 and thereafter the proposed Legal Heir of Prahlad Rai i.e. appellant filed application bearing No. I.A. No. 1140/2017 for his substitution along with an application (I.A. No. 1141/2017) for condonation of delay under Section 5 of the Limitation Act, 1963 on 13.07.2017 which were ordered to be dismissed vide impugned order dated 20.12.2017. The relevant portion of the impugned order dated 20.12.2017 is reproduced as under:
The present application was moved on 13.07.2017 i.e. immediately after passing of said order and no plausible explanation has been come forward for such a long delay that too, when one of the LRs of deceased securitization applicant was pursuing the matter on behalf of Late Shri Prahlad Rai being Special power of attorney holder. Article 120 of the Schedule of the Act prescribed 90 days period from the date of death of applicant for filing an application for bringing on record the LRs of deceased. The securitization applicant died on 18.07.2016 and the present application has been filed on 13.07.2017.
Under Article 121 of the Schedule of the Limitation Act, further period of 60 days has been prescribed for setting aside the abatement, therefore this period has also expired much before filing of the present application. It is abundantly clear that the period of abatement was to commence from date of death in the present matter, as Shri Mahinder Kumar Sharma, who is son of the deceased securitization applicant and pursuing the matte, was well aware the factum of death of his own father, though no sufficient cause has been shown, why they could not make out the application within the prescribed period. Though liberal construction was to be given for advancement of social justice, but in the present matter there was gross negligence and inaction on the part of the present applicant. The present applicants were not diligent enough and plea taken by them is not bonafide one, therefore no case has been made out for condonation of delay for filing application for setting aside the order of abatement as well as application for setting aside the order of abatement.
With the above observation/direction, both the applications are hereby dismissed being devoid of any merits.
It is reflecting on record that the original SA applicant Prahlad Rai had expired on 18.07.2016 and the Advocate for the appellant/applicant sought time to file an application for bringing on record the Legal Heir of SA applicant vide proceeding on 08.08.2016 and thereafter time was also sought on many occasions. The appellant ultimately file the application for his substitution being the Legal Heir of original SA applicant application along with an application for condonation of delay under Section 5 of the Limitation Act, 1963 on 13.07.2017 and for setting aside the abatement order dated 05.07.2017.
Sh. Anand Aggarwal, Advocate for the appellant stated that the appellant did not pursue S.A. bearing No. 24/2015 after the death of original SA applicant Prahalad Rai and due to this reason the delay was caused.
Sh. Biswajit Kumar Patra, Advocate for respondent bank has referred the impugned order dated 20.12.2017 and argued that the DRT-III, Delhi in the impugned order has given valid legal justification for dismissal of the application.
It is reflecting that the DRT-III, Delhi in the impugned order has rightly observed that the period of abatement was to be commenced from the period of death and the appellant was well aware about the death of his father and no sufficient cause has been shown for not filing the appropriate applications i.e. 1140-41/2017. It appears no infirmity in the impugned order dated 20.12.2017.
However, in the interest of justice and considering the fact that the original SA applicant Prahalad Rai has claimed substantial right in the subject property, the order dated 20.12.2017 is set aside and the appellant is allowed to be impleaded in place of original SA applicant Prahalad Rai with cost of Rs. 10,000/-, which is to be deposited with DRAT Bar Association, Delhi within week.
It is stated by the Advocate for the appellant that the matter is now transferred to DRT-I, Delhi. Accordingly, the parties are directed to appear before DRT-I, Delhi on 20.07.2026 for further proceedings.