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Judgment
Anil Kumar Srivastava, Chairperson
For Admission
The appeal was to appear on the 5th of August, 2022, the date already fixed. But with the consent of the both the parties the date of hearing is being heard today, preponing the date already fixed.
I.A. 205 of 2022
This is an application for stay of the proceedings pending before the Learned DRT-2, Kolkata.
Mr. Nimish Mishra, alongwith Mr. Debabrata Basu Ray, has put in appearance for the Respondents.
With the consent of the parties, the appeal is being heard on merits and is being decided.
Instant appeal has been preferred against an order dated 22nd April, 2022 passed by the Learned DRT-2, Kolkata in S.A. 304 of 2016 (M/s. Karishma Enterpises & Others -vs- Punjab & Sind Bank & Another) whereby the matter was posted for final hearing and disposal on 7th June, 2022.
Learned Counsel for the Appellant submits that the Appellant was not permitted to argue the matter rather even his submissions were not recorded in the order dated 22nd April, 2022. Learned Counsel further argues that in the interest of natural justice, an opportunity may be granted to the Appellant to file Affidavit-in-Opposition in the SARFAESI Application.
Learned Counsel for Respondents has drawn attention towards different orders passed by the Learned DRT-2, Kolkata wherein an opportunity to file opposition was allowed to the Appellant. By order dated 1st March, 2021 Appellant was given an opportunity to file Affidavit-in-Opposition before the Registry. Such opportunity was ultimately closed on 17th March, 2022 as no Affidavit-in-Opposition was filed despite several opportunities. Thereafter the matter was listed for arguments. It is submitted that the matter was listed before the Learned DRT on 12th July, 2022 wherein the Appellants were asked to submit their notes of arguments within one week. It is further submitted that this is an S.A. of 2016 which is being unnecessarily delayed by the Appellants.
Record shows that this S.A. was filed by the Respondents in the year 2016. On 1st March, 2021 it is recorded by Learned DRT that the Defendant Bank is neither present nor has complied the order of the Tribunal despite several opportunities. However, last opportunity was provided to file the Vakalatnama and Affidavit-in-Opposition before the Registry. Matter was directed to be listed on the 6th of May, 2021. Thereafter, due to pandemic matter was adjourned to different dates. Ultimately, on 17th March, 2022 Learned DRT passed an order that no Affidavit-in-Opposition is filed by the Bank despite several opportunities; hence right to file Affidavit-in-Opposition is closed. The matter was posted for final hearing.
Learned Counsel for the Appellant submits that the erstwhile Learned Counsel for the Bank did not file Affidavit-in-Opposition which was a fault on his part for which Bank should not be put to suffer.
It is apparent from the record that Affidavit-in-Opposition is not filed by the Bank. Judicial notice of the fact can be taken that since March, 2020 there was pandemic Covid-19. However, it is apparent from the record that opportunity for filing Affidavit-in-Opposition was given to the Bank but Affidavit-in-Opposition was not filed. Now Bank wants to file Affidavit-in-Opposition although it is not the absolute right of the Bank to file Affidavit-in-Opposition at its sweet will and pleasure; rather Bank stands on the same footing as any other litigant, i.e. borrower, guarantor or anybody else. However, keeping in view the principles of natural justice, I find it expedient in the interest of justice that an opportunity should be given to the Appellant Bank to file Affidavit-in-Opposition within a limited period; failing which, Learned DRT would be at liberty to proceed with the matter in accordance with law. In the event Appellant files Affidavit-in-Opposition, advance copy be served upon the Respondents enabling the Respondents to file rejoinder, if any.
Accordingly, the appeal is liable to be disposed of.
ORDER
The appeal, being Diary No. 268 of 2022, is disposed of with a direction to the Appellant to file Affidavit-in-Opposition before the Learned DRT-2, Kolkata by 19th of July, 2022; subject to payment of costs of Rs.20,000.00 (Rupees twenty thousand) to be deposited in the Prime Minister Relief Fund. If the cost imposed is not paid or the Affidavit-in-Opposition is not filed by 19th of July, 2022, then Learned DRT would be at liberty to proceed with the matter in accordance with law.
In the event, Affidavit-in-Opposition is filed by 19th of July, 2022 and the costs are put in then Learned DRT shall proceed to decide the S.A. expeditiously after giving opportunity of hearing to the parties, in accordance with law.
The I.A., being I.A. 204 of 2022 is also disposed of.
File be consigned to Record room.
Copy of the order be communicated to DRT-2, Kolkata forthwith.
Copy of the order be also supplied to the Appellant and the Respondents.
Order dictated, signed, dated and pronounced in open Court.