Mc Raj Paper Mills Pvt. Ltd. And Ors. vs Dena Bank And Ors.

S.N.H. Zaidi, J

The instant application has been filed under Section 5 of the Limitation Act read with Section 17(7) of the SARFAESI Act, seeking condonation of delay in filing the accompanying appeal. The application is supported with the affidavits of appellant/applicants. The respondents in its reply filed along with counter-affidavit have opposed the application. No rejoinder to the reply/counter-affidavit has been filed by the applicants.

I have heard Mr. Sanjeev Bhandari, Counsel for the appellant/applicants and Mr. Ramesh Kumar for the respondents and perused the record.

The accompanying appeal against the order dated 24.11.2010 of DRT-II, Delhi passed in S.A. No. 61/2009 has been filed on 7.3.2011. According to the office report, the appeal is time-barred by 71 days whereas the appellant/applicants have sought for the condonation of 75 days' delay in filing the appeal.

Mr. Bhandari has contended that the only reason for failure to file the appeal within the period of limitation was that the appellants could not arrange the necessary fee required for filing the appeal in time.

The above contention has, however, been disputed by the respondents' Counsel contending that the appellants had not paid the requisite fee while filing the appeal and the deficiency in the payment of fee was made good in parts within a month of filing of the appeal. It has been pointed out by him that the respondent Bank had also filed the appeal against the very same order dated 24.11.2010 of the Tribunal below and the appellants had taken part in the proceedings of the said appeal through a different Counsel and it was only after the change of Counsel that the appellants have filed the accompanying appeal as a clear afterthought.

A perusal of the record shows that the appellant/applicants had filed the appeal with deficient fee, as according to the office report, as against the required fee of Rs. 1 lack only Rs. 22,400/- were paid at the time of filing of appeal and the deficiency of Rs. 78,600/- was made good in parts by depositing Rs. 38,000/- on 18.3.2011 and Rs. 40,600/- on 1.4.2011. In view of this, Mr. Bhandari's contention does not appear to have any force that the delay in filing the appeal had occasioned due to paucity of fund for the payment of required fee, because had the appeal been filed with full fee then it could have been accepted that the delay in filing the appeal within the period of limitation was occurred due to insufficiency of funds for the payment of required fee but the appeal had already been filed with deficient fee. In my opinion the appeal could be filed within the period of limitation with deficient fee and the deficiency could have been made good subsequently, as has already been done by the appellants. No other ground of delay in filing the appeal has been urged by the appellants.

In view of above, I am of the considered view that the appellant/applicants have miserably failed to show sufficient cause of delay of 71 days in filing the appeal and as such the instant application being devoid of any 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 not maintainable and is dismissed as time-barred.

Copy of this order be furnished to the parties as per law.