Smt. Sushma Srivastava vs Union Bank Of India & Anr.

The present case was heard and reserved for orders on merits of the case vide order dated 16.12.2025 of this Tribunal.

Learned counsel for the appellant submitted that after sanction of loan, no amount was paid by the Bank, as she was cheated by some person including the employee of respondent-Bank and the Branch Manager. It was further contended that a suit bearing No. 429/2009 was filed by the respondent-Bank before the Civil Court, which was disposed off vide order dated 20.11.2015 on the ground that the property has been sold by the Bank. It was also contended that during the pendency of said suit, the respondent-Bank filed an application before the CMM, Kanpur Nagar under section 14 of the SARFAESI Act without mentioning therein the pendency of the said suit, but the same was allowed vide order dated 01.03.2012 directing the Police Authority to provide the possession within 15 days. It was further contended that in the meantime, the appellant lodged two FIRs against five persons including Anil Trivedi on 22.02.2006 and 10.05.2010.

Learned counsel further submitted that the respondent-Bank without issuing demand notice dated 11.01.2020 has issued notice dated 10.05.2010 to the appellant for taking physical possession of the property in question, against which the appellant had filed Writ Petition No. 33294/2010 before the Hon'ble High Court, Allahabad, which was dismissed with liberty to the appellant for filing application before the Tribunal below and accordingly the S.A. No. 253/2012 was filed before the Tribunal challenging the order dated 01.03.2012 passed by the CMM, Kanpur, Nagar, which was dismissed vide order dated 13.09.2013 for want of prosecution.

Learned counsel also submitted that the said order was not served upon the appellant as the same was received by her counsel. It was further contended that the appellant against the dismissal order dated 13.09.2013 filed a misc. recall application No. 84/2016 for recalling the same on certain grounds along with application for condonation of delay, but the Tribunal below vide order impugned dated 10.04.2019 has dismissed the said application on the ground of delay without considering the facts involved in the case. It was, therefore, prayed that the order impugned may be set-aside and the appeal filed by the appellant may be allowed.

Learned counsel for the respondent-Bank submitted that the present appeal is not maintainable for want of pre-deposit, as no appeal can be entertained unless the borrower deposits 50% of the debt due as claimed by the secured creditor or as determined by the Tribunal below, whichever is less in view of second proviso of section 18 of the SARFAESI Act. It was further contended that the appellant has also not filed any waiver application nor pleaded any sufficient cause, therefore, no amount can be reduced below to 25% in view of third proviso of the said section.

Learned counsel further submitted that the S.A. filed by the appellant was dismissed for want of prosecution on 13.09.2013 and the application under section 22(2)(g) of the RDB Act was filed on 20.05.2016, which is after an inordinate delay of 980 days, that too without any cogent or sufficient reasons, as such the Tribunal below as rightly held that the delay was neither bonafide nor supported by any sufficient cause.

Learned counsel also submitted that the contention of the appellant that she did not receive a single penny from the Bank is not correct, as she has categorically admitted in recall application that she has utilized a sum of Rs. 6.50 lacs from the sanctioned loan amount. It was further contended that the FIR lodged by the appellant was thoroughly investigated and the same were found to be false and baseless vide final report No. 33/2008 dated 13.02.2008 and against it, the petition filed by the appellant was also dismissed by the competent court on 14.02.2010. It was thus contended that the said issue raised in the present appeal is barred by principals of res-judicata. As such it was contended that the appellant has utterly failed to point out any illegality or irregularity in the order impugned, hence the same requires no interference by this Tribunal. It was, therefore, prayed that the appeal filed by the appellant may be dismissed with heavy costs.

Considered the rival contentions of the learned counsels for the parties and perused the material available on record.

Admittedly, the present appeal has been filed under section 18 of the SARFAESI Act against the order impugned, by which the Misc. Application for recalling the same was dismissed on the ground of delay. As such there is no proceeding pending before the Tribunal below, therefore, the present appeal is treated to have been filed against the final order. The second proviso of section 18 says that no appeal shall be entertained unless the borrower has deposited 50% of the amount of debt due as claimed by the secured creditors or determined by the Tribunal below, whichever is less. However, the third proviso says that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than 25% of debt referred to in the second proviso.

The aforesaid provisions are mandatory in nature and not discretionary. In the present case, the appellant has neither deposited any amount nor filed any application for waiver of pre-deposit in view of third proviso of the section as referred to above. As such the present appeal is not maintainable for want of pre-deposit in view of section 18 of the SARFAESI Act. Thus, the appeal filed by the appellant is liable to be dismissed as not maintainable for want of pre-deposit.

So far as the merits of the case is concerned, the S.A. was dismissed on 13.09.2013 for non appearance of the appellant and the recall application was filed before the Tribunal below on 20.05.2016 along with application for condonation of delay. Thus the said application was filed with a delay of 980 days. The plea taken by the appellant before this Tribunal is that the dismissal order was received by her counsel and the same was not served upon the appellant, but the said plea was not taken before the Tribunal below at the time of filing the Misc. Application along with application for condonation of delay, as it is evident from para 5 of the order impugned, wherein it is clearly stated "It is also reflected that copy of the order dated 13.09.2013 was dispatched to the applicant through registered post from this Tribunal. It is surprising to note that applicant has not denied this fact that the copy of order dated 13.09.2013 was never served".

However, the appellant had taken two grounds before the Tribunal below for getting such in ordinate delay of 980 days condoned, one was the illness of her husband and second was that she was pursuing the suit No. 425/2009 filed by the respondent-Bank before the Civil Court. While going through the order impugned, it is found that both the grounds have elaborately been considered and held that applicant was aware about the order dated 13.09.2013 passed by the Tribunal below and despite knowledge she never taken any action well within the period of limitation as prescribed under the Act.

In order to see the genuineness of the aforesaid conclusion of the Tribunal below, it is to be seen that the documents with regard to ailment of husband of appellant, which is annexed with the recall application, pertains to December 2014, whereas the S.A. was dismissed on 13.09.2013, which is after about 1.3 years, but during the said period, as to why the misc. application was not filed, the appellant has not given any reason and as such the same remained unexplained. The next ground of the appellant was that she was pursuing the suit filed by the respondent-Bank before the Civil Court. Admittedly, the said suit was dismissed on 20.11.2015 and recall application was filed on 20.05.2016, which is after six months. The said period has also not been explained by the appellant. Thus the delay of 980 days occurred in filing the misc. application has not been explained either before the Tribunal below nor before this Tribunal. As such the Tribunal below vide order impugned has rightly rejected the application for condonation of delay and also the misc. application. Hence, the present appeal is liable to be dismissed as not maintainable for want of pre-deposit and also on merits.

In view of the discussions as recorded above, the present appeal is firstly dismissed as not maintainable for want of pre-deposit and secondly on merits also. No order as to costs.

A copy of this order be forwarded to the parties as well as the DRT concerned and be also uploaded on e-DRT portal.