At, Debts Recovery Appellate Tribunal At Mumbai
By, THE HONOURABLE MR. JUSTICE MR. JUSTICE S. RAVI KUMAR
For the Appellant: Rafique Peermohideen, i/b M/s. T.N. Tripathi & Co., Advocates. For the Respondents: R2 (proprietress R1), Ms. Reshma H. Jariwala, R3, Hemish R. Jariwala, Advocates.
S. Ravi Kumar, Chairperson-1. Heard Advocate for appellant and respondent Nos. 2 and 3 through video conferencing.2. This appeal is preferred against judgment dated 12.3.2020 in Securitization Application (S.A.) No. 474/2019 filed on 10.10.2019 on the file of Debts Recovery Tribunal No. II, Ahmedabad (the Tribunal below).3. Learned Advocate for appellant represented that the main S.A. is filed beyond statutory period of 45 days and the Tribunal below recorded the same in Para 4 of its judgment. It is further submitted though S.A. is filed beyond period of limitation Tribunal below considered merits of the case. It is submitted that the matter may be remitted back to Tribunal below so that opposite party will have an opportunity to explain the delay through proper application which can be decided on merits after giving opportunity to both parties.4. Parties present in person submitted that they have explained the delay for non-filing of S.A. in their reply in the appeal, but they have not filed any separate appeal challenging finding of the Tribunal below on the point of limitation.5. I have perused the material papers and the impugned order dated 12.3.2020. As rightly pointed our by Advocate for appellant, as there is no appeal from the opposite parties, findings with regard to limitation cannot be examined, particularly when the Tribunal below recorded a specific finding stating “Admittedly in this case applicants have failed to approach this Tribunal within 45 days from the date of symbolic possession”. In view of the clear cut finding of the Tribunal below, I am of the view that the request made by Advocate for appellant is quite reasonable. When the same was put to the opposite parties, they have consented for remand.6. Considering the same, the impugned order dated 12.3.2020 in S.A. No. 474 of 2019 is set aside and the matter is remitted back to Tribunal below to decide the S.A. No. 474 of 2019 afresh after giving opportunity to both parties. Tribunal below shall first decide point of limitation and only if the point of limitation is answered in favour of the applicants in the S.A., then to examine the merits of the case and decide it without being influenced by any of the observations made in this order or in the impugned order.7. Accordingly, appeal is ordered and the
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Tribunal below shall decide the S.A. No. 474/2019 within two months from the date of receipt of this order. Appeal is allowed accordingly.8. All Miscellaneous Applications, if any, are dismissed as infructuous.Appeal allowed andMisc. Applications dismissed.