Mrs. Rishu Chaudhary vs Indian Overseas Bank & Ors.

The instant application is filed for seeking condonation of delay in filing the present appeal.

The present appeal is filed on 04.05.2022 to impugn the order dated 03.01.2019 passed by the DRT-Jaipur. Sh. R.P. Aggarwal, Advocate for the appellant stated that the appellant after passing the impugned order dated 03.01.2019 filed a Writ Petition bearing No. 1011/2019 before the High Court of Rajasthan on 10.01.2019 to challenge the impugned order and said Writ Petition was finally disposed of on 20.04.2022.

Sh. R.P. Aggarwal, Advocate seeks exclusion of the time taken in prosecuting the Writ Petition bearing S.B. Civil Writ Petition No. 1011/2019 before the High Court of Judicature for Rajasthan on 10.01.2019 which was finally disposed of vide order dated 20.04.2022. It is prayed that the delay of 1185 days in filing the present appeal be condoned.

Sh. Gautam Singhal, Advocate for the respondents no.1 and 2 stated that the Section 14 of the SARFAESI Act is not applicable to the appeal rather it is applicable only to the suit. The present appeal is obviously time barred as the appellant filed the S.B. Civil Writ Petition No. 1011/2019 before the High Court of Judicature for Rajasthan on 10.01.2019. He argued that the present appeal be dismissed being barred by limitation.

It is reflecting that the impugned order passed on 03.01.2019 and present appeal was presented on 04.05.2022 i.e. after the delay of 1184 days. It is also reflecting that the appellant filed a Writ Petition bearing No. 1011/19 before the High Court of Rajasthan on 10.01.2019 which was finally disposed of vide order dated 20.04.2022. The Rajasthan High Court in the said Writ Petition also passed the effective orders.

It is appearing that the delay on the part of appellant was neither intentional nor deliberate but the considerable time was consumed in prosecuting the Writ Petition bearing No. 1011/19 before the High Court of Rajasthan.

After considering all facts, the application bearing No. 215/2022 is allowed and delay in filing the present appeal stands condoned.

Sh. R.P. Aggarwal, Advocate for the appellant stated that the appellant has already deposited a sum of Rs.45,07,750.29 on 23.12.2024 as pre-deposit vide demand draft No. 87398120 dated 21.12.2024 issued by Indian Overseas Bank.

Sh. Gautam Singhal, Advocate for respondents no.1 and 2 stated that a sum of Rs. 79,80,922/- as on 30.01.2026 was due against the appellant and said amount does not include the amount so realised by after sale of the subject property.

The appellant has already deposited Rs.45,07,750.29 which comes to more than 50% of the outstanding dues as stated by Shri R.P. Aggarwal, Advocate for appellant.

Accordingly, the condition of pre-deposit is fulfilled by the appellants. Hence, the application is decided accordingly.

The appellants filed S.A. bearing No. 215/2018 titled as Rishu Chaudhary v. Indian Overseas Bank & others which was ordered to be dismissed vide impugned order dated 03.01.2019 passed by the Presiding Officer, DRT-Jaipur.

The appellant in S.A. bearing No. 215/2018 stated that the appellant has challenged the notice/email dated 25.10.20218, which has been issued for handed over the possession of the factory premises i.e. subject property. The perusal of the present S.A. particularly the relief as claimed by the appellant in the SA is to set aside the notice/email dated 25.10.2018 issued by the respondent for taking over possession of the subject property besides claiming other reliefs. Sh. R.P. Aggarwal, Advocate for the appellant stated that the period of 45 days required to be counted from the 25.10.2018 on which date the appellant has received the said letter/email.

Sh. Gautam Singhal, Advocate for respondents no.1 and 2 stated that it is reflecting from the impugned order dated 03.01.2019 that the notice under Section 13(4) of the SARFAESI Act was issued on 01.01.2017 which was served on 17.04.2017 and referred para no. 5(m) and 5(n) of the securitization application and thereafter argued that the appellant herself admitted the service of notice under Section 13(4) of the SARFAESI Act on 17.04.2017. It is further argued that the email dated 25.10.2018 was not a measure taken under Section 13(4) of the SARFAESI Act as such, said letter/email dated 25.10.2018 cannot be the basis of filing the present S.A.

The perusal of SA reflects that it is based on letter/email dated 25.10.2018 which was not even referred by the DRT-Jaipur in the impugned order dated 03.01.2019. The email dated 25.10.2018 is definitely not a measure stated to have been taken by the respondents no.1 and 2 under Section 13(4) of SARFAESI Act. It is also reflecting from para 5(m) of the S.A. that the appellant was having the knowledge of issuance of notice under Section 13(4) of the SARFAESI Act on 17.04.2017.

The appellant herself made proposal for the settlement with respondents no.1 and 2 subsequent to the notice dated 17.04.2017. In the assessment of this Tribunal, the present SA should have been presented within four weeks from 17.04.2017. DRT-Jaipur has taken the right view that the SA period of limitation. There is no reason to interfere with the impugned order dated 03.01.2019 passed by the DRT-Jaipur. Hence, the present appeal is dismissed being devoid of any merit.