Ravindra Uppal And Ors vs Konkan Mercantile Co-Operative Bank Ltd. And Ors

S. Ravi Kumar, J

This application is filed to condone delay in preferring Appeal against order dated 10.2.2016 in Securitisation Application (S.A.) No. 99 of 2014 on the file of Debts Recovery Tribunal No. II, Mumbai (DRT).

It is the contention of applicant that they have filed S.A. No. 99 of 2014 and it was disposed of on 10.2.2016, that he came to know about the dismissal only during hearing of Appeal No. 61 of 2016 filed by him against order dated 22.9.2015. It is further contended that applicant and his Advocate came to know about the dismissal of the S.A. for the first time on 17.10.2016 and thereafter applicant applied for certified copies of orders which were made available to applicant on 24.10.2016. It is further contended that immediately after procuring copies. Applicant approached new lawyer and then filed appeal. It is further contended that earlier Appeal No. 61 of 2016 was withdrawn as per the direction of the Court and certified copy of the order of withdrawal was given to applicant only on 13.12.2016 and right to file this appeal technically arose on 13.12.2016 and within 14 days present appeal is filed as such there is no delay, but the Registry raised objection that there is a delay, of 300 days, for that reason present application is filed.

Head both sides.

Advocate for applicant submitted and reiterated the same reasons that are narrated in the application and argued that a lenient view may be taken and an opportunity may be given to applicant to agitate their rights.

Advocate for respondent Nos. 1 and 2 submitted that applicant has not explained long delay of 300 days with cogent and convincing reasons, therefore, application is liable to be dismissed.

I have perused material papers including earlier Appeal No. 61 of 2016 filed by the applicant herein. It is not in dispute that Tribunal below passed order dated 22.9.2015 in the very same S.A. No. 99 of 2014 challenging which the applicant filed Appeal No. 61 of 2016. In fact that Appeal No. 61 of 2016 is also filed with delay condonation application i.e. M.A. No. 214 of 2016 with a prayer to condone delay of 84 days in preferring the said appeal. Order dated 22.9.2015 is interim order passed on Interim Application (I.A.) No. 688 of 2015. As per the said order, the applicant herein has to deposit certain amount in different dates and entire outstanding shall be discharged by end of March, 2016. A condition is stipulated in the said order that if the applicant commits default of making any of the deposits, main S.A. shall stand dismissed without further reference. As per the said order, Rs. 2 lacs has to be deposited by 15.10.2015. Rs. 28 lacs has to be deposited by end of November 2015, Rs. 30 lacs has to be deposited by end of January, 2016 and remaining balance outstanding has to be deposited by end of March, 2016. Form the record it appears that only first installment of Rs. 2 lacs is paid and remaining installments are not paid. As per conditional order S.A. shall stand dismissed if any of the deposits are not made, so by giving effect to the order dated 22.9.2015 S.A. was dismissed on 10.2.2016. Now the contention of applicant is that he came to know about dismissal only on 17.10.2016 during the hearing of Appeal No. 61 of 2016. As seen from record in Appeal No. 61 of 2016 no hearing took place on 17.10.2016 and it was adjourned by recording presence of both side Advocates. It is further contended in the application that earlier Appeal No. 61 of 2016 was withdrawn as per the directions of this Tribunal. But as seen from the proceedings in Appeal No. 61 of 2016, the delay condonation application, waiver application and stay application along with appeal were withdrawn on 1.12.2016 by Advocate for applicant by seeking permission. So the contention that the appeal was withdrawn as per direction of this Tribunal is a patent lie and it is contrary to the record. Further earlier appeal was withdrawn unconditionally. When the order dated 22.9.2015 specifically speaks of dismissal of the S.A. for non-compliance of payment as per schedule, the contention of applicant that he has no knowledge of dismissal till 17.10.2016 cannot be accepted at any stretch of imagination. If the applicant is not aware of order dated 22.9.2015, then his contention with reference to knowledge of dismissal of the S.A. can be accepted to some extent. When applicant challenged order dated 22.9.2015 by filing Appeal No. 61 of 2016 and in fact obtained some orders in that appeal to implead auction purchaser also, the reasons stated by the applicant which are contra to the facts on record cannot be accepted. As per the procedure the period of limitation has to be calculated in terms of Section 18 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (the SARFAESI Act), but not as contended by applicant in his application.

So as rightly pointed by Advocate for respondent Nos. 1 and 2. Applicant has miserably failed in explaining long delay of 300 days with cogent and convincing reasons, as such applicant is not entitled for the condonation of delay.

On a scrutiny of the material, I am of the considered view that applicant has miserably failed in explaining delay of 300 days with cogent and convincing reasons and that there are no grounds to take lenient view in favour of applicant, therefore, the application is liable to be dismissed.

Accordingly M.A. No. 407 of 2017, i.e. application for condonation of delay of 300 days in filing Appeal No. 120 of 2017, is dismissed with costs. Consequently Appeal No. 120 of 2017 is rejected.

All Miscellaneous Applications, if any, are dismissed as infructuous.