Sanjay Jain vs CANARA BANK on 27 May 2020

MA No.33/2020 IN SA 32/2020 Sanjay Jain vs. Canara Bank

27.05.2020 Item No.19.

Present: Adv. NK Verma, Counsel for the Applicant (on video conference).

This MA has been filed to recall the order dated 19.05.2020 passed through video conferencing after hearing learned counsel for applicant and that SA was dismissed as being time barred .

The learned Registrar has raised an objection on this MA regarding court fee that this MA has been filed to review the order therefore as per rules court fee is applicable which is mentioned for the review application. On the other side counsel for applicant has argued that this is not a review application but he has filed this application to recall the order on the ground of ignorance of facts on the part of this Tribunal.

I heard learned counsel for applicant on the issue of court fee and I am of this opinion that this application has been filed not in a shape of review application but to recall the order on the basis of ignorance of fact therefore the proper court fee has already been filed which is applicable for filing the MA as per rules and accordingly I have heard counsel for applicant on this application to recall order dated 19.05.2020.

The learned counsel for applicant has argued that this Tribunal dismissed the SA on the ground of limitation as being time barred and mentioned in the order that applicant did not file any application for condonation of delay whereas the counsel for applicant stated that the application for condonation of delay was filed after filing the SA when registry raised an objection regarding limitation and counsel for applicant admitted this fact fairly that he did not argue on this application at the time of argument in SA on 19.05.2020 on the point of limitation.

Counsel for applicant further stated that he was under this impression that this Tribunal was well aware of this fact , about the filing of application under section 5 of limitation act for condonation of delay that is why he did not argue on this application and further prayed to condone this delay as applicant was trying to settle the matter with the bank and prayed to recall the order dated 19.05.2020 and condone the delay and issue notice to the bank in the SA.

Counsel for applicant relied upon the judgment passed by Hon’ble Madhya Pradesh High Court in 2003(4) MPHT 57 Shanti Devi Aggarwal vs. VH Loola in which it was held that the order can be recalled by the court if there is any mistake or ignorance of facts on the part of court.

I heard learned counsel for applicant.

When applicant filed this SA then he took a stand that his SA is within limitation and he never took any averment in his SA that he has filed this SA after the expiry of limitation and he never filed any application for condonation of delay alongwith SA, It is only when registry raised an objection, the applicant filed this application under section 5 of limitation act without amending the SA regarding limitation in para number 4.

And further at the time of arguments on 19.05.2020 the counsel for applicant neither argued on this application for condonation but he argued that this SA was filed within limitation and never argued on this application for condonation of delay which was filed after the objection raised by the registry. The applicant had tajen a clear stand that there was no delay and the SA has been filed with in limitation .

On one side at the time of filing SA the applicant was taking one stand that his SA was within limitation and on other side he has file one application for condonation of dealy after the objection of registry and he has taken this ground that he had sufficient reason for not filing SA within limitation. Counsel for applicant stated that this Tribunal was well aware about this fact regarding application of condonation of delay therefore the delay should have been condoned in the interest of justice.

I am not convinced with the arguments of learned counsel for applicant because it was only the counsel for applicant who was required to argue on this application for condonation of delay on 19.05.2020 .but instead of arguing on this application the counsel for applicant argued that this SA is within limitation and never brought this fact in my knowledge that he had filed any such application for condonation of delay because he was assuming himself to be within limitation and when the SA was dismissed as being time barred , he has file this application to recall this order on the ground that he had already filed an application for condonation of delay. It is relevant to mention that merely filing application for condonation of delay is not sufficient in itself to condone the delay but he has to satisfy the Tribunal whether there was any reason or not.

In the case in hand, counsel for applicant has today argued that he could not file SA within limitation i.e. is 45 days from the date of auction because the borrower was trying to settle the matter with the bank. But in his SA the borrower has taken this contention that he had moved and application on 21.04.2020 to the bank to set-aside the auction and bank did not take any action on his application then cause of action accrued to him on 21.04.2020 to file this SA. Therefore, the argument of counsel for applicant as well as facts mentioned in this application are contradictory and since applicant took one stand in his SA that his SA is within limitation therefore they cannot be permitted to take contradictory averment on the point of limitation once the SA has been dismissed as being time barred.

The facts of case in hand are entirely different from the case relied upon by applicant as there is not any kind of ignorance of any fact while passing order on 19.5.20.

Therefore, as per above mentioned reasond, I am of this view that there is no ground to recall the order dated 19.05.2020 as applicant failed to satisfy this Tribunal regarding delay. Further it is relevant to mention that once the SA of applicant is dismissed on the ground of limitation and at the time of arguments on 19.05.2020 the counsel for applicant did not argue on this application of condonation and when SA was dismissed the applicant wants this Tribunal to condone the delay on the basis of ground mentioned in the application for condonation of delay. If such delay is condoned, and that application which was never argued by the counsel for applicant and which was never filed by the borrower with his SA then it will amount to be an abuse to the process of law and accordingly this MA is dismissed.

This order was dictated to Steno Sh. Manoj Gupta on mobile phone of Sh.Satnarain Sharma (Court Master) and was edited and checked by me on my personal.mail ID, and approved by me on my email ,to upload the same on website of DRT. The Registrar is also directed to inform the learned counsel for applicant through e-mail as well as telephone that the order has been uploaded on the official website of DRT.

(Sanjeev Mago) Presiding Officer DRT-I, Chandigarh (Additional Charge) Manoj 27.05.2020