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State Bank of Bikaner & Jaipur V/S Rajat Fashion Bazaar and Others.

    Misc. Appeal No. 440 of 2012

    Decided On, 02 July 2014

    At, Debt Recovery Appellate Tribunal At Delhi


    For Petitioner: Girish Verma, Advocate And For Respondents: Reema Khurana, representing B.S. Nagar, Advocates

Judgment Text

1. The State Bank of Bikaner & Jaipur has filed the present appeal against the order passed by DRT, Jaipur whereby the Tribunal below has recalled the order dismissing the S.A. filed by the respondent in default on 3rd September, 2007. The grievance of the Bank is that the application for recall of the order dated 3rd September, 2007 was moved only in the year 2012 after expiry of nearly 4 years 8 months The Tribunal below ignored this inordinate delay on the part of the respondent to move this application in seeking recall of the order. The Tribunal below has allowed this application vide order dated October 12, 2012 against which the Bank has accordingly filed this appeal. Notice in this case was issued and the respondent has appeared and has filed the reply.

2. I have heard Counsel for the parties. Counsel for the Bank has rather been vehement in his submission that neither the respondent could show any cause which was sufficient for which order dated September 3, 2007 could be recalled by the Tribunal below nor could the respondent explain this inordinate delay on his part to seek recall of the said order nearly after expiry of 4 1/2 years. The Counsel has then made reference to the reasons which were stated in the application by the respondent to show sufficient cause on the basis of which the respondent could not make timely approach before the Tribunal to seek recall of the order dated September 3, 2007.

3. Perusal of the application filed in this regard would show that the Bank had issued notice under Section 13(2) on 10.10.2002, followed by notice under Section 13(4) on 12.1.2005. Sale notice was issued on 17.7.2006 against which the respondent had filed S.A. No. 46 of 2006 for declaring the said notices as illegal and void in terms of the settlement arrived at between the parties on 25th February, 2005. It is averred in the application that the Bank had agreed for One-Time Settlement for Rs. 6,25,000/- towards which a sum of Rs. 1,57,000/- was paid and a cheque for the balance amount of Rs. 4,68,000/- was handed over to the Bank. While dealing with this SA, the Tribunal below had rejected the application for staying the auction proceedings against which the respondent had filed an appeal before this Tribunal. This Tribunal had then protected the respondent herein by setting aside the auction and by further directing that the possession of the property be restored to the respondent. This order was impugned by the appellant Bank before the High Court of Rajasthan by filing Writ Petition No. 1674 of 2007 and the High Court vide its order dated 24th April, 2007 ordered the parties to maintain status quo in regard to possession of the property in question. It is this order which, as per the respondent, gave him impression that the Court had stayed the proceedings and no proceedings would take place in the SA. The respondent states to have stopped appearing before the Tribunal below thereafter.

4. Since no stay order was passed by the High Court, the proceedings in the SA continued before the Tribunal below. Being under this impression, the respondent had not put in appearance before the Tribunal below. The Tribunal below however passed the order dated 3rd September, 2007 dismissing the SA in default. No objection can be taken against the order.

5. As per the respondent, copy of the order dismissing the SA in default was never received by him though the Counsel for the appellant Bank would point-out, that the Tribunal below had dispatched free copy of the order dismissing the SA in default to the respondent. Be that as it may, this reason has weighed with the Tribunal below to hold that the respondent had shown sufficient cause for his nonappearance and accordingly order dated 3rd September, 2007 has been recalled. The SA has been restored to its original position by imposing costs of Rs. 5,000/-.

6. The Counsel for the appellant Bank would accordingly contend the High Court order was clear and as such there was no scope of any misunderstanding about the order passed by the High Court. The High Court had only granted status quo in regard to possession of the property and had not stayed the proceedings before the Tribunal below. This order, as per Bank, could not be construed as stay order. As per the Counsel for the Bank, the respondent had slept over his right and has made the present approach after inordinate delay of more than 4 1/2 years which has also remained unexplained. The only explanation offered by the respondent is that due to misapprehension and misappreciation of the High Court he did not appear in the proceedings before the Tribunal below thinking that the Tribunal will not continue with the proceedings and hence the delay.

7. It is also stated that the order passed by the Tribunal below was never received by him. Be that as it may, the Bank has already sold this property. Justification offered by the respondent may not appear to be fair, just and legal. No evidence has been placed on record to show that the copy of the order was received by the respondent. The respondent cannot be attributed with any motive in this case on his part to remain absent as he was going to loose his residential property. The respondent herein is only making efforts to retrieve his residential property. In these circumstances, in my view, no serious prejudice would be caused to the Bank because it has already completed its action. Status quo in regard to the property in question has been maintained and the SA has remained pending after its restoration in the year 2012. In these peculiar circumstances, I do not feel inclined to interfere in the impugned order.

8. To be fair, the Counsel for the appellant has relied upon judgment of the Hon'ble Supreme Court in case Basawaraj & Anr. v. The Spl. Land Acquisition Officer, : VII (2013) SLT 97 : III (2013)

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CLT 291 (SC) : Civil Appeal No. 6974 of 2013, decided in August 22, 2013. where the Court has dealt with the terms 'sufficient cause' while considering the issue of condonation of delay. In my view, condonation of delay in making the approach to the Court at the initial stage may be viewed differently compared to the situation where litigant had already approached the Court and because of some negligence, on this fact he fails to prosecute the case subsequently. The ratio of Basawaraj's case (supra) may not be fully apply to the present case. In view of the above, I am not inclined to interfere with the impugned order. The appeal is therefore dismissed.