Rani P. vs Pegasus Asset Reconstruction Co. And Ors.

Ranjit Singh, J

This appeal is directed against the order passed by the Debts Recovery Tribunal, Delhi-1 allowing the O.A. filed by the respondent Indusind Bank Ltd., for recovery of Rs. 39,52,792.64 from the defendants including the appellant, who was defendant No. 4 in the O.A. The Bank is also held entitled to interest @ 13% per annum from the date of filing of the O.A. till actual realization. The defendants have been held liable jointly and severally. Against this order passed on March 15, 2010, the present appeal is filed on May 25, 2012. The appeal is, thus, filed with delay of 757 days. The appellant has moved an application seeking condonation of delay in filing the appeal. The reasons disclosed in the application seeking condonation of this inordinate delay are that the appellant is residing in France for the last thirty-five years as she had left India in the year 1972. She has permitted her brother to stay in the property in question at Chennai. As per the appellant, the original title deeds of the property was entrusted to Ms. Leema Raju wife of late Mr. Wilfred. As per the appellant, on the day when she is alleged to have given personal guarantee, she was not present in the country. It is urged that Ms. Leema Raju had misused the original title deeds and had created a false equitable mortgage of the property by impersonating herself as Mrs. P. Rani.

Two of the properties stand in the name of the appellant and her husband. A false death certificate of her husband was produced and on that basis of her legal representative certificate was obtained and the property was mortgaged. The appellant would point out that her husband is still alive. The appellant would also claim that she was under bona fide belief that the respondent Bank would protect her interest by proceeding against Ms. Leema Raju. Though the impugned order was passed on March 15, 2010 but still the Bank did not take any coercive step against the property as the Bank was aware that the appellant is a victim of impersonation and forgery. It is only when the appellant learnt about the sale proclamation in the last week of April 2013, she has taken steps to file the appeal. Claiming that the appellant has a genuine defence to raise in her favour, she has prayed for condoning the delay and for disposing the appeal on merits.

When the application came up for hearing on February 12, 2014 the proxy Counsel appearing on behalf of the Counsel for the appellant made submissions contrary to the record. The case was adjourned by imposing costs of Rs. 5,000/- to be deposited with DRAT, Bar Association. Today, the Counsel states that the costs could not be deposited as the DRAT Bar Association did not accept the same. Let the costs be deposited with Legal Aid, Patiala House Court, Delhi.

When the case was being heard on March 19, 2014, the Counsel for the appellant sought time to file better affidavit to explain the delay. Additional affidavit has now been filed, which has not improved the case of the appellant in any manner. Except for stating that the appellant received notice in Chennai in March 2012 for attachment of the property when she contacted her power of attorney holder to enquire about it. It is stated that her power of attorney holder then contacted the local lawyer when it was learnt that the impugned order was passed in April 2012. Prayer accordingly is made for condoning the delay.

Counsel for the respondent however, would project a different picture. He would refer to the impugned order to show that the appellant, (who was defendant No. 4 before the Tribunal below) was represented by a Counsel namely Mr. S. Arvind. The other defendants, however, were proceeded ex parte. The Counsel would then point out that the said Advocate was engaged by the same attorney through whom the appellant has now made inquiries to learn about the impugned order. On this basis, the Counsel contends that the plea that the appellant came to learn about the order in March/April 2012 is a story which is invented and cannot be accepted in view of the factual position in this regard.

There may be some substance in the plea raised by the appellant that she has been deceived by Ms. Leema Raju, but the blame of this deception is attributable to the appellant. The appellant was not wise enough to leave the original title deed with some one. If she has been impersonated to create this charge over the property then she is the facilitator of the same. The appellant may have now to initiate criminal proceedings against Ms. Leema Raju and then may have to take other remedial action.

In the O.A., filed by the Bank, notice was served on the appellant and she was throughout represented by the Counsel till the date of passing of the order. The appellant may have been staying in France, but was represented by a Counsel in this case through her attorney who, as seen from the additional affidavit, has now been engaged by her in obtaining the copy of the order. Once the appellant has been participating in the proceedings, she cannot plead to be unaware of the order passed in the year 2010. Still, the appellant has failed to take any action to file this appeal. The manner in which the appellant has made averments in the application seeking condonation of delay may indicate that she has decided to file this appeal only once attachment notice is issued. She perhaps was in the know of the order but expected the Bank to save her on the ground that it was case of impersonation. Earlier, the Bank perhaps was considerate to her as she was pleading that she stood cheated. Since the appellant was well aware of the impugned order as is indicated from the averments made in the application, she cannot claim condonation of delay on the ground that she was not aware of the order. She is not coming out with complete truth. The appellant has, thus, not been able to explain this inordinate delay of 757 days in filing the appeal. What to talk of explaining the delay of each and every day, there is no explanation worth consideration given by the appellant/applicant to explain this delay. I have not been able to persuade myself to accept the ground of impersonation alone as pleaded to condone this delay. The appellant was and is fully aware about this fact from the date she was served with notice in the O.A. and had defended herself in this regard. I, therefore, do not find this as valid reason or ground to condone this delay.

Even two judgments referred to by the Counsel for the appellant/applicant in the cases of Industrial Investment Bank of India Ltd. v. Marshal's Power & Telephone (I) Ltd. & Anr., I (2007) SLT 158 : I (2007) CLT 190 (SC) : 2007 (1) SCC 106 and N. Balakrishnan v. M. Krishnamurthy, VII (1998) SLT 334 : JT 998 (6) SC 242 would be of no help to the cause of the appellant. In the case of N. Balakrishnan (supra), the Court found that the delay had sufficiently been explained and so the Court took the view that it was rightly condoned. In the case of Industrial Investment Bank of India Ltd. (supra), the Court has not considered the issue of condoning the delay. The High Court in this case had passed an interim injunction against the order passed by DRT. The Supreme Court has held that the High Court had acted illegally by restraining recovery. It is observed that injunction restraining enforcement of orders passed by a Tribunal having jurisdiction cannot normally be granted unless it is a case of fraud, or existence of some such vitiating factor undermining the jurisdiction of the Tribunal is shown. The Court has held, that even then the injunction as granted in the case could be granted only in exceptional cases. How this case has relevance to the issue under consideration can not really be made out. In view of the above, there is no merit in the pleas raised in the application (IA No. 378 of 2012) and no case is made out for condoning the delay. The application is, therefore, dismissed. The appeal shall thus stand dismissed on the ground of delay.