At, Debts Recovery Appellate Tribunal At Mumbai
By, THE HONOURABLE MR. JUSTICE S. RAVI KUMAR
For the Applicant: Pooja Muni, i/b M/s Bilawala & Co., Advocates. For the Respondents: R1, Sanjana Ghogare, R2, Sankalp Golatkar, i/b M/s. S.K. Misra & Co., Advocates.
1. This application is to condone delay of 273 days in preferring Appeal against order dated 2nd June 2018 in S.A. No.26 0f 2012 on the file of DRT, Pune.
2. Heard advocates for parties in person.
3. Accordingly to averments of petition, Applicant instructed their Advocate to apply for certified copy of the order and the same was received on 5th July 2018. According to Applicant, annexures that are to be attached to Appeal Memo were not received from their previous Advocate. According to Applicant, it made several reminders to their previous for return of documents but they were unable to get them, thereby unable to file appeal within time. According to Applicant, account of Vitthal Agro Products Private Limited got transferred to SAMB-I team at Mumbai and along with account, papers were also transferred to SAMB-I Mumbai, but SAMB-I Mumbai was not able to trace those papers and finally they could trace them and sent to their Advocate towards end of March 2019, therefore, de3lay in filing is not deliberate.
4. Respondents filed reply disputing the petition averments. According to Respondents, there is gross negligence and deliberate inaction on the part of Appellant if preferring Appeal. According to Respondents, explanation offered by Applicant is an afterthought and Bank failed to give any sufficient cause for long delay. According to Respondents, for filing Appeal no other documents are required at the time of filing and reason given by Applicant is only to overcome their negligence, therefore, it is not tenable. Respondents contended that Applicant did not produce single document supporting their version for delay. They also contended that Applicant failed to give details like dates to support their version for delay. Respondents contended delay is more than 300 days.
5. Advocate for Applicant submitted after impugned order, settlement talks were there and that was also one of the reason for delay. It is further submitted due to shifting of office of Advocate, papers were misplaced and they were not returned to Bank and that was also a reason for delay. It is submitted that a lenient view be taken for the delay and an opportunity may be given to challenge impugned order.
6. On the other hand, Advocate for Respondents submitted argument of Bank Advocate regarding alleged settlement talks is without any pleading and material, therefore, the same cannot be considered. It is further submitted no details are given for the alleged misplace of papers etc. It is submitted office of DART is not insisting for annexures at the time of filing and Appeal can be filed without them. It is submitted if Office raises objection for annexures then reason of Applicant can be accepted to some extent but Appeal is not filed till 10.04.2019, for the reason best known to Bank.
7. I have examined all material papers with reference to submissions of both sides. Admittedly, impugned order is dated 2nd June 2018 and appeal is filed on 10th April 2019. It is specific case of Applicant that it received certified copy on 5th July 2018. Application is completely silent as to the date on which Applicant instructed its Advocate to apply for certified copy and the date on which application for certified copy is made. Application is also silent as to the annexures that are required to accompany Memo of Appeal. Even with regard to alleged misplacement and communication with its Advocate, application is completely silent. It is also not disclosed as to date on which account is transferred and date on which papers are recovered by Applicant, except vaguely stating that they received them towards end of March 2019. No communication relating to transfer of account and transfer of papers is produced. When respondents specifically contended that no annexures are necessary with Appeal Memo, it is expected from Applicant to show that the rules or provision under which such annexures are required with details of annexures. Therefore, objection of Respondents that reason of non-availability of annexures is untenable has to be accepted.
8. Advocate for Applicant cited two judgements in support of Applicant’s case. First decision is of Supreme Court in State of Haryana V/s Chandra Mani & Ors. reported in (1996) 3 SCC page 132 and other one is also of Supreme Court in Sri Veera Hanuman Rice & Flour Mill & Anr. V/s. State Bank of India in Appeal (Civil) 2896 of 2000.
9. Advocate for Respondents submitted that both the decisions are not applicable to the present case.
10. In the first decision Hon’ble Supreme Court held that generally liberal approach is to be taken in condonation of delay. Supreme Court dealt with reason of sufficient cause with reference to facts of that case and held that delay of 109 days has been explained. As rightly pointed out by Advocate for Respondents, in our case there is no explanation with sufficient and cogent reasons and explanation offered is completely untenable, therefore, that decision cannot be applied here. In the second decision also word sufficient cause’s is examined. In that case Trial Court dismissed delay petition but High Court reversed Trial Court order when matter carried to Supreme Court, Supreme Court found fault with High Court for taking a liberal view without examining factual aspect and no that ground High Court order is set aside and matter was remitted back for fresh examination. So that decision is no way helpful to Applicant
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. 11. As already referred to above. Applicant failed in showing sufficient cause for long delay, particularly from date of receipt of Certified Copy i.e. 05.07.2018 till date of filing of Appeal i.e. 10.04.2019. Simply because Applicant is a Bank liberal view cannot be taken without showing convincing reasons for such long delay. For these reasons, I am of the view that Applicant failed in showing sufficient cause for delay of 273 days. 12. For the reasons stated above, Application is liable to be dismissed. Accordingly application is dismissed, but under the circumstances without costs.