MANSOOR AZAR RIZVI vs BANK OF INDIA on 4 April 2024

**JUDGMENT**

1. 1. In compliance of order dated 10.01.2024 passed by Hon'ble Allahabad High Court in Writ C No.1001531 of 2014 and the order dated 18.11.2013 passed in Regular Appeal No.188 of 2013, the present Misc. Application was heard on 21.3.2024 and after hearing the parties at length, the case was reserved for pronouncement of judgment.

2. 2. The counsel for the applicant stated that the M.A. was filed on 30.01.2024 against the dismissal order dated 11.3.2022 passed by this tribunal in S.A.532 of 2011, the said dismissal order was passed during continuation of the stay order dated 11.3.2014 passed in Writ-C No.1001531 of 2014. The S.A. 532/2011 was remanded back by the Hon'ble DRAT, Allahabad vide order dated 18.11.2013 with the directions to decide the S.A in accordance with law, the order dated 18.11.2013 passed by Hon'ble DRAT, Allahabad in appeal No.R-188 of 2013 was stayed by the Hon'ble Allahabad High Court vide its order dated 11.3.2014, hence, effective hearing could not be conducted in the S.A.532 of 2011 and in the absence of either of the parties to the proceedings, the securitization application was dismissed on dated 11.3.2022 for non-prosecution, the applicant was totally ignorant of the fact that the S.A.532 of 2011 for which the proceedings has been stayed by the Hon'ble Allahabad High Court had been dismissed by this tribunal in such a cursory manner and that too without enquiring or recording its satisfaction about the status of the pending Writ C No.1001531 of 2014. The applicant further submitted that Writ C No.1001531 of 2014 had been finally decided by Hon'ble Allahabad High Court on 10.1.2024 but by that time the applicant was totally unaware of the dismissal order dated 11.3.2022 passed by this tribunal in S.A.532 of 2011 and neither the bank nor the auction purchaser who had filed the Writ-C No.1001531 of 2014 had ever informed the Hon'ble Allahabad High Court about the said dismissal order, the Writ-C No.1001531 of 2014 was decided on dated 10.01.2024 with the directions to the petitioner "Auction Purchaser " who is respondent No.3 to the S.A.532/2011 to file appropriate application before the DRT within next two weeks and at the same time liberty was also given to respondent No.7 "the applicant to the S.A and to the present M.A." to move appropriate application for protection of his interest during the proceedings before the DRT. It is further submitted by the applicant that it is the duty incumbent upon the auction purchaser to comply the order dated 10.01.2024 passed in Writ-C No.1001531 of 2014, but to which the auction purchaser has failed. As the S.A. had been dismissed for non-prosecution, therefore, in this condition neither the compliance of the order passed by the Hon'ble Allahabad High Court nor the Hon'ble DRAT Allahabad is possible. It is further submitted that there is no such delay on part of the applicant while filing the present recall application for ensuring the compliance of the Order passed by Hon'ble Allahabad High Court, though the delay condonation application is not required to be filed in terms of the liberty granted by the Hon'ble Allahabad High Court vide order dated 10.01.2024 even then a separate delay Condonation application as a precautionary measure has been filed with the present M.A., therefore, the present M.A. "Recall Application" deserves to be allowed for ensuring the compliance of the order passed Hon'ble Allahabad High Court and Hon'ble DRAT, Allahabad.

1. 3. On the contrary, the counsel appearing on behalf of the bank submitted that the M.A. is time barred and issue of limitation is to be decided first. He submits that the S.A.No.532/2011 was dismissed for non-prosecution by this tribunal vide order dated 11.3.2022 and the M.A. was filed on 30.01.2024 with an admitted delay of 01 years 10 months and 18 days and the applicants have failed to give any specific reason of the delay, despite having knowledge of the proceedings before this tribunal, the applicants never approached this tribunal within stipulated period, the applicant has failed to give any cogent reason for recall of order dated 11.3.2022 and on merely an application without any genuine or bonafide ground the applicant cannot be granted any relief. The conduct of the applicant while approaching the Tribunal is not bonafide, the applicant wants to prolong the litigation, therefore, the M.A. which is itself highly time barred is liable to be rejected.

2. 4. The counsel for the respondent No.3 "Auction Purchaser" submitted that the recall application moved by the applicant is highly time barred, hence deserves to be rejected, the applicant cannot be allowed to take the shelter of the Order passed by Hon'ble Allahabad High Court.

3. 5. In rebuttal, the counsel appearing for the applicant submitted that the objections filed by the bank cannot be considered as the same has not been prepared and filed/present as per the provisions of CPC, it is also submitted by the applicant that before making allegations on the conduct of the applicant, the bank and the auction purchaser must analyze their own conduct because they have intentionally misrepresented the facts not only before Hon'ble Allahabad High Court but also before this Tribunal and even bank and the auction purchaser had never informed the Hon'ble Allahabad High Court about the dismissal order passed in S.A No.532/2011.

1. 6. After the matter was reserved for passing the final order, the respondent No.3/Auction Purchaser has filed an application on 06.4.2024 i.e. "application for further hearing on application for limitation preferred by the applicant in said case".

2. 7. Heard counsel for all the parties and gone through the record.

3. 8. As regard to the application for further hearing filed by the respondent no.3. The Recall application/M.A. was heard and with the consent of all the parties to the proceeding, the matter was reserved for passing final order/pronouncement of judgment, therefore, the said application which has been filed by respondent no.3 after the matter was reserved for passing final orders is hereby rejected in light of the orders and observations made by Hon'ble Supreme Court in the case of "*Arjun Singh Vs. Mohinder Kumar & others and Hon'ble Andhra Pradesh High Court*" in the case of "*Rayapaneni Umadevi Vs. bheemneni Vamsi kiran*" and Hon'ble Karnataka High Court in the case of "*Savithramma vs. Hanumappa*" and "*Rabiya BI Kasim Vs. The country Wide Consumer Financial Services ltd.*"

4. 9. That the Hon'ble High Court while passing the final order dated 10.01.2024 in Writ-C No.1001531 of 2014 has observed, relevant paras are quoted below:

Para 2: *By means of present writ petition present writ petition petitioner has assailed the judgment and order dated 18.11.2013, passed by the Debt Recovery Appellate Tribunal (hereinafter referred to as "the DRAT") which was considering order dated 20.08.2013, passed by the Debt Recovery Tribunal (hereinafter referred to as "the DRT") and have finally remanded the matter back to the DRT to decide the same after giving specific directions.*

Para 6: *It is further noticed that DRAT has not recorded any finding contrary to the finding recorded by the DRT and consequently present order does not run adverse to the interest of the petitioner. In the remand proceedings the petitioner as well as respondents would be entitled to take all the pleas available to them in support of their contentions and accordingly, this Court is of the considered view that no interference is required in the order passed by the DRAT.*

Para 7: *In the light of above, this Court does not find any ground for interference. It is further noticed that the petitioner was granted interim protection of status quo. The protection granted to the petitioner shall continue for further period of four weeks, during which period it is expected that the petitioner shall file appropriate application before the DRT within next two weeks and the Tribunal shall consider and decide the same expeditiously, say within two weeks thereafter in accordance with law and after giving appropriate opportunity to the parties.*

**Para 8:** Liberty is also given to respondent no.7 to move appropriate application for protection of his interest during the proceedings before the DRT. In case such an application is moved within next two weeks, same shall be considered and disposed of alongwith the application preferred by the petitioner.

**Para 9:** Considering that much time has lapsed since pendency of the matter. The DRT is directed to expedite the proceedings and conclude the same within six months from the date of production of certified copy of this order. The parties shall cooperate in the proceedings before the DRT.

**Para 10:** With above directions/observations the writ petition is **disposed of**.

As discussed above, it is clear that when liberty was given by the Hon'ble Allahabad High Court vide its order dated 10.1.2024 to the applicant to move appropriate application before the DRT concerned, then at that time the counsel appearing on behalf of the bank and the auction purchaser before the Hon'ble Allahabad High Court have never raised any objections on the conduct of the applicant and informed about the dismissal order dated 11.3.2022 and status of S.A.532/2011, the said conduct of the bank as well as the auction purchaser while representing their case before the Hon'ble Allahabad High Court is highly depreciable.

1. 10. After going through the records and for ensuring the compliance of the order dated 10.01.2024 passed by the Hon'ble Allahabad High Court and the order dated 18.11.2013 passed by the Hon'ble DRAT, Allahabad, this tribunal is of the considered opinion that the present recall application / M.A has been filed within limitation from the date of order passed by the Hon'ble Allahabad High Court, therefore in terms of the order dated 10.01.2024 passed in Writ-C No.1001531 of 2014 passed by the 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 "M.A" is hereby accordingly allowed and the order dated 11.3.2022 passed in S.A-532/2011 is hereby recalled.

2. 11. The recall application is allowed subject to deposit of Rs.2,000/- in the account of Bharat Ke veer and only after ensuring the deposit of cost, the S.A.532/2011 shall be restored to its original number.

3. 12. 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