NUSRAT ALI vs UNITED BANK OF INDIA on 4 April 2024

IN THE DEBTS RECOVERY TRIBUNAL LUCKNOW

Present: A.H. Khan, Presiding Officer

Dated of order 04.4.2024

M.A. No.21 of 2024

SL No. 27

**Present:-**

<table border="1"><tr><td>Counsel for the applicant</td><td>Mr. Mohammad Yaqoob</td></tr><tr><td>Counsel for the respondent-bank</td><td>Mr. S.M. Furquan</td></tr></table>

In compliance of the order dated 15.3.2024 passed by the tribunal, the Authorize Officer of the bank marked his presence before the tribunal and informed that the total dues which are payable as on 31.3.2024 by the applicant in the loan account is Rs.47.50 lakhs approx.

The counsel appearing on behalf of the applicant submits that the applicant is willing to pay the entire dues of the bank within three months as per the repayment schedule submitted by him on 15.3.2024 and to show his bonafide a demand draft of Rs.5.00 lacs is being present today as advance.

The counsel appearing on behalf of the respondent bank submits that the rights of the applicant to redeem his property has already extinguished by virtue of the provision of section 13(8) of the Act, 2002 because the property has already been auctioned, sale certificate has been issued in favour of the auction purchaser and as on date, third party interest has been created in the property, before putting the property on auction repeated opportunities were given to the applicant to repay the dues but to which the applicant has failed, hence at this stage when the property has already been auctioned, the bank cannot accept the proposal of repayment made by the applicant, therefore the same be rejected, it is further submitted that the applicant has not approached with clean hands and has filed the present recall application at a very belated stage without any justified reason of delay caused on his part in presenting the present M.A. for recall of the ex-parte order dated 05.3.2022 passed by the tribunal in S.A.153/2018. It is further submitted that in execution of the order passed under Section 14 of the Act, 2002 the physical possession of the property was taken by the bank but the applicant again entered into the property illegally by broking/removing the lock & seal of the bank from the property and now he is a trespasser in the property, for the said conduct of the applicant, the FIR has been lodged by the bank, as the M.A. is highly time barred and the conduct of the applicant is also malafide, therefore, the recall application is liable to be rejected without any mercy being shown to the applicant.

The counsel appearing on behalf of the applicant submits that applicant is a victim of fraud and misrepresentation by the conduct of the previous advocates (name detailed in para 5.12 of the recall application) who were appearing on his behalf and it is a settled law that a litigant must not suffer by the conduct of an advocate. It is further submitted that the physical possession of the property is with the applicant, the FIR lodged by the bank is based on misrepresented facts and has been filed to give benefit to their blue eyed auction purchaser to whom the bank has illegally auctioned the high valued property of the applicant, at a through away price, without following the mandatory provisions of the Act, 2002. The applicant is always having a bonafide intention to repay bank dues and as on date also but the bank has never responded with clean hands because since beginning the bank officers are having bad eyes on the high valued property of the applicant.

It is further submitted, that without any urgency being moved by the applicant, the order dated 17.02.2022 and the ex-parte dismissal order 05.3.2022 was passed by the tribunal in S.A.153/2018 on the behest of misleading conduct of the respondent bank counsel during pandemic Covid 19 when virtual mode of hearing for only urgent matters was being conducted by the tribunal under strict guidelines as notified by the tribunal vide letter dated 10.01.2022 (page 17 of the recall application). Without listing of the case on the date fixed i.e. 05.3.2022, the ex-parte order in S.A.153/2018 was pronounced on 05.3.2022 and on the other hand the records of the tribunal itself reveals that the matter was listed on 07.03.2022 at Sr.No.5 (Annexure No. M.A.4, 5 & 6 of the recall application). It is further submitted that the recall application filed by the applicant is well within limitation from the date of actual knowledge and from the date of the order dated 19.02.2024 passed by Hon'ble Allahabad High Court in Writ-C No.4546 of 2024 by which liberty was granted to the petitioner to avail other remedies, the recall application is also well within limitation from the date of passing of the order dated 15.02.2024 passed by Hon'ble Allahabad High Court in Writ-C No.1436 of 2024 by which petitioner was permitted to avail other remedies and when the Hon'ble High Court was kind enough to grant liberty as well as permitted the applicant to approach DRT, then the counsels appearing on behalf of the bank before Hon'ble High Court have never raised any objections on the conduct of the applicant and about the dismissal order and status of S.A.153/2018. Hence, the recall application (M.A) be allowed and S.A.153/2018 be restored to its original number and the matter be heard and decided on merits after completing the pleadings.

On the contrary, the counsel for the bank again laid emphasis on the conduct of the applicant and the way the applicant has tried to trespass in the property which was in the physical possession of the bank and submitted that before making allegations upon the technical aspects of the registry of the tribunal and on the conduct of the previous advocate's appearing on his behalf before the tribunal, the applicant must also see his conducted and malafide intention towards the repayment of bank loan. Hence, the present M.A. be dismissed with heavy cost.

Heard counsel for both the parties and peruse the record.

The tribunal do agree with the applicant that there was some technical glitch in the listing of S.A.153/2018 and when the dismissal order dated 05.3.2022 was passed by the tribunal during pandemic Covid-19 but at the same time the applicant cannot ignore his liability towards the persuasion of his case and fasten all the wrong doer on the registry of the tribunal and on the previous counsel appearing on his behalf. It is also true and with a feel of sorry it is being recorded that when Hon'ble Allahabad High Court in Writ-C No.4546 of 2024 vide order dated 19.02.2024 has granted liberty to the applicant/petitioner to avail other remedies and vide order dated 15.02.2024 passed by Hon'ble Allahabad High Court in Writ-C No.1436 of 2024 when the applicant was permitted to take appropriate legal remedy before DRT concerned, then at that time the counsels appearing on behalf of the bank before Hon'ble High Court have never raised any objections on the conduct of the applicant and about the dismissal order dated 05.3.2022 and status of S.A.153/2018.

After going through the records, this tribunal is of the considered opinion that the present recall application/M.A has been filed within limitation from the date of orders passed by Hon'ble Allahabad High Court, therefore in terms of the order dated 15.02.2024 and 19.02.2024 passed in Writ-C No.1436 of 2024 and 4546 of 2024 passed by Hon'ble Allahabad High Court, the delay caused on part of the applicant in filing the recall application is condoned and accordingly the delay condonation application is allowed. As the delay condonation application is allowed, thereby the recall application is accordingly allowed and the order dated 05.3.2022 is also hereby recalled.

The recall application is allowed subject to deposit of Rs.5000/- in the account of Bharat Ke veer and only after ensuring the deposit of cost, the S.A.153/2018 shall be restored to its original number.

With the above observations, the recall application is accordingly allowed; since the M.A has itself been finally disposed off, hence, all the other pending applications are also disposed of accordingly.

Let copies of this order be supplied to the parties as per Rules.

File be consigned to record room.

(A.H. Khan) Presiding Officer