Union Bank Of India vs Md. Akbar Shamim & Anr.

The present appeal has been filed under section 18 of the Securitization and Reconstruction of Financial Asset and Enforcement of Security Interest Act, 2002 (hereinafter referred to as "the SARFAESI Act") against the judgment dated 23.08.2023, whereby the Securitization Application No. 244/2022 filed by the respondent no. 1 has been allowed.

Brief facts of the matter are that the respondent no. 1 is one of the legal heirs of deceased borrower, who was the father of respondent no. 1. The father of respondent no. 1 was granted financial assistance by the appellant-Bank, in which the property in question was mortgaged. Since the borrower did not maintain the financial discipline, therefore, the account was classified as NPA on 29.08.2018 and a demand notice u/s 13(2) of the SARFAESI Act was issued on 11.10.2018 for a sum of Rs.11,51,442.50. Since the borrower did not pay any heed to the said demand, therefore, the symbolic possession of the property in question was taken by the appellant by issuing possession notice dated 20.04.2019 u/s 13(4) of the said Act. The said possession notice was also affixed, served and published in the newspapers on 26.04.2019. Thereafter, the appellant-Bank issued auction sale notice dated 12.06.2019, which was published in the newspapers on 20.06.2019 scheduling the auction of the property in question on 28.08.2019.

The respondent-borrower challenged the entire proceedings of the Bank by filing the present S.A. No. 114/2019 before the Tribunal below, which was allowed vide order dated 27.08.2019 setting aside the auction sale notice dated 12.06.2019 and confirming the process taken by the Bank up to possession notice.

It appears that after dismissal of the aforesaid S.A., another fresh sale notice was issued by the Bank on 24.12.2019, which also failed. Thereafter, another sale notice dated 24.02.2020 was issued, but the same was also not materialized, therefore, subsequent sale notice was issued on 11.04.2022, which also could not materialize for the same reason and fourth sale notice was issued on 25.05.2022 and the same was also not materialized for non-participation of the bidders. Ultimately, fifth sale notice dated 01.12.2022 was issued, which was published in the newspapers on 08.12.2022 scheduling the auction of the property in question on 11.01.2023.

The respondent no. 1-borrower challenged the entire proceedings of the appellant-Bank by filling S.A. No. 244/2022 before the Tribunal below along with application for condonation of delay. During the pendency of the said S.A. the appellant-Bank got the possession notice dated 02.05.2023 issued by the District Magistrate to assist the Bank in taking physical possession of the property, which was also challenged by the respondent no. 1-borrower in the said pending S.A. by filing I.A. No. 325/2023.

The Tribunal below vide order impugned has allowed the S.A. of the respondent-borrower by quashing the entire SARFAESI Action of the Bank holding that there is no demand against the account of the applicant, as there can be no default for the demand that was never made. Being aggrieved by the said part of the order impugned, the present appeal has been filed by the appellant-Bank along with application for condonation of delay.

It appears that despite service of notice, no one has appeared on behalf of the respondents, therefore, they were proceeded ex-parte vide order dated 28.07.2025 of this Tribunal.

With regard to the delay, learned counsel for the appellant submitted that certified copy of the order impugned was issued on 18.09.2023 to the learned counsel for the appellant, which was handed over to the official of the appellant-Bank only on 09.12.2023. It was further contended that the same was forwarded by the deponent to its controllers and law department for necessary instruction, which was received only on 25.01.2024 by the appellant-Bank to take action towards filing of the appeal against the order impugned. It was also contended that pursuant to the said instruction, the appellant-Bank immediately handed over the available records of the case to its counsel for preparation of appeal on 25.01.2024 itself and accordingly, the present appeal was prepared and ultimately, the same was filed before this Tribunal on 24.02.2024. It was further contended that the said delay was occurred not on account of inaction on part of the appellant, but only on account of and time having spent on seeking the necessary advice and approvals from the competent authority of the appellant-Bank. It was, therefore, prayed that the delay occurred in filing the present appeal may be condoned and the appeal may be decided on merits.

Considered the arguments of the learned counsel for the appellant.

Undisputedly, the impugned order was passed on 23.08.2023 in presence of the learned counsel for the appellant-Bank. As per the provisions of the Act and Rules made thereunder, free certified copy of each and every final order passed in the case is sent by the Tribunal to the party concerned. As such, the same was definitely sent by the Tribunal below to the parties, which must have been received by them within 7 to 15 days from the date of pronouncement of the judgment i.e. 23.08.2023, but the present appeal was filed by the appellant with the delay of 175 days i.e. on 14.02.2024.

It is settled proposition of law that the length of delay is not material, if there are sufficient grounds to condone the delay and also that generally, the court should be liberal in condoning the same, but for this purpose, the applicant has to show the sufficient reason, which may entitle for condonation of delay. In the instant case, admittedly, the impugned order was passed on 23.08.2023 in presence of the counsels for the parties including the appellant-Bank, so the appeal ought to have been filed before 22.09.2023, but the same was filed on 14.02.2024 with the delay of about 175 days. The reason as shown is that the counsel for the appellant-Bank has handed over the certified copy of the order dated 23.08.2023 to the official of the appellant-Bank on 09.12.2023 and thereafter, time was consumed in taking permission from the higher authorities of the appellant-Bank, which was ultimately received on 25.01.2024, but the story seems to have been cooked by the appellant for the reasons that no document with regard to the permission of the higher authorities for filing the present appeal or the date on which the certified copy was handed over by the advocate to the Bank has been filed by the appellant-bank before this Tribunal, which may support/authenticate the averment as made by the Bank. Thus, it can be inferred that both the dates have been put just to explain/cover such inordinate delay in filing the present appeal. The appellant is a public sector bank and is having well educated officials, who are conversant with the procedures of the DRTs. Besides it, each and every bank including the appellant is having law officer to chase and pursue its case pending before the Tribunal. For the sake of argument, if it is assumed that the empaneled advocate has not provided the certified copy of the order impugned in time and on the date of pronouncement of the order impugned, the law officer of the Bank was also not present, even then the each and every order of the Tribunal is uploaded on the website of the e-DRT portal and each and every person can see the status of his case, but in the present case, for more than three and a half months, the appellant was not aware of the order impugned as claimed by it, which cannot be believed. Thus, there are clear lapses on part of the appellant and no plausible explanation much less sufficient cause is there on record to condone such inordinate delay of 145 days excluding the period of limitation as provided under the Act and Rules made thereunder. As such, the application for condonation of delay is liable to be rejected.

In view of the aforesaid, the application for condonation of delay is rejected and consequently, the appeal also with no order as to costs.

Since, the present appeal has already been held to be barred by limitation, therefore, the merit of the case is not required to be dealt with.

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