CANARA BANK vs Abdul Hanan Molla on 20 September 2019

1. 1. Abdul Hannan Molla, son of Late Ochhimuddin Molla;

2. 2. Smt. Anwari Bibi, wife of Late Ochhimuddin Molla;

- Both are residing at Village - Manicktolla, P.S. Shonepukur, District - 24 Parganas (South).

- Respondents

Counsel for parties:

For the Appellant : Mr. Basudeb Mukherjee, Counsel For the Respondents : Mr. Ashok Ghosh, Counsel **FINAL ORDER / JUDGMENT**(Delivered on 20^th September, 2019)

This appeal has been preferred by Canara Bank on 10^th May, 2013 against order dated 27^th July, 2012 passed by the learned Recovery Officer, Debts Recovery Tribunal-2, Kolkata. Since there is delay in filing the appeal, the Appellant has filed an application for condonation of delay.

1. 2. The Applicant Bank granted a loan of Rs.9.00 lac to the original Respondent (Ochhimuddin Molla), since deceased and has been substituted by his son Abdul Hanan Molla and his wife Smt. Anwari Bibi. Since the deceased, Ochhimuddin Molla, failed to repay the loan, the Appellant Bank filed a case against the said Abdul Hanan Molla and another for recovery of the loan; being O.A. 342 of 2000 before Debts

Recovery Tribunal - 1, Kolkata. After establishment of this Tribunal, i.e. Debts Recovery Tribunal - 2, Kolkata, the said O.A. stood transferred to this Tribunal and renumbered as T.A. 559 of 2001. The said T.A. was eventually disposed of by judgment dated 3^rd April, 2008 by which the prayer of the Applicant Bank was allowed and it was declared that the Bank was entitled to recover Rs.18,42,529.00 (Rupees eighteen lac forty two thousand five hundred twenty nine only) from the Defendants alongwith further interest from 29^th November, 2000 at the rate of 15.30% per annum. Consequent upon this judgment, Recovery Proceedings commenced; being R.C. 43 of 2008. Before the Recovery Officer, the Appellant Bank filed an application praying for appointment of a receiver in respect of the mortgaged property and for an ad interim order. The matter was heard and judgment was reserved. The judgment was ultimately passed by the Recovery Officer on 27^th February, 2012 and a copy of the judgment was received by the Appellant Bank on 2^nd April, 2012. By the said order, the Recovery Officer directed the Bank to refund a sum of Rs.26,92,307.00 plus interest at the rate of 19.5% on short fall of rent, i.e. Rs.2,61,608.00 and also advised to execute a fresh lease deed and pay the rent to the Certificate Debtor with effect from 15^th February, 2008 till the date of payment. Challenging the order of the Recovery Officer, the present appeal has been filed, inter alia, contending that the Recovery Officer has no power to pass any such order for recovering the debt specified in the certificate except by the modes mentioned under Section 25 and 28 of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993. In view of Section 26 of the said Act, the Recovery Officer does not have any power to amend or modify the amount of debt specified in the certificate.

3. In the application for condonation of delay, it is stated that on or about 2^nd April, 2012, the Appellant Bank received a copy of the impugned order dated 27^th February, 2012 alongwith a forwarding letter dated 26^th March, 2012 from this Tribunal from which the

Appellant came to know about the order passed by the learned Recovery Officer, as stated above. After receipt of the order, the Appellant Bank sought opinion from the Learned Counsel who advised to prefer an appeal before the learned Presiding Officer. It is further stated that on or about 16^th March, 2013, the Appellant Bank received a letter dated 12^th March, 2013 from the Respondent NO. 1 wherein a copy of the order dated 27^th February, 2012 was also annexed. However, the impugned order dispatched by this Tribunal was received by the Appellant Bank on 2^nd April, 2012 and after consulting the lawyer of the Bank, the instant appeal was filed on 10^th May, 2013. Thereby 414 days delay had occurred. However, in the next para they have stated that there was delay of 437 days; accordingly prayed for condonation of delay of 437 days for filing the appeal.

4. Respondents have filed affidavit-in-opposition in which they have supported the order of the learned Recovery Officer.

5. I have heard the Learned Counsel for the parties and have gone through the documents on record.

6. Admittedly, there was delay of 437 days in filing the appeal. The time limit fixed, as per statute, for filing an appeal against an order of the Recovery Officer is thirty days. Regarding the power of the Tribunal to condone the delay, the matter has been examined and explained in Civil Appeal No. 16962 of 2017, a three-judge Bench of Hon'ble Supreme Court in its decision dated 24^th October, 2017 in **INTERNATIONAL ASSET RECONSTRUCTION COMPANY OF INDIA LTD. - VERSUS - THE OFFICIAL LIQUIDATOR OF ALDRICH PHARMACEUTICALS LTD. AND OTHERS** held as under:- *14. The RDB Act is a special law. The proceedings are before a statutory Tribunal. The scheme of the Act manifestly provides that the Legislature has provided for application of the Limitation Act to original proceedings before the Tribunal under Section 19 only. The appellate tribunal has been conferred the power to condone delay beyond 45 days under Section 20(3) of*

the Act. The proceedings before the Recovery officer are not before a Tribunal. Section 24 is limited in its application to proceedings before the Tribunal originating under Section 19 only. The exclusion of any provision for extension of time by the Tribunal in preferring an appeal under Section 30 of the Act makes it manifest that the legislative intent for exclusion was express. The application of Section 5 of the Limitation Act by resort to Section 29(2) of the Limitation Act, 1963 therefore does not arise. The prescribed period of 30 days under Section 30(1) of the RDB Act for preferring an appeal against the order of the Recovery officer therefore cannot be condoned by application of Section 5 of the Limitation Act.

15. Insofar as **A.R. Venugopal @ R.Venugopal** (two-Judge Bench decision dated 01.07.2015 in Civil Appeal No. 4926 of 2015) is concerned, all that would be required to be noticed and observed is that the entire statutory scheme did not fall for consideration of the court in that case.

16. The appeals lack merit and are dismissed. (underlining supplied for emphasis)

7. In view of clear verdict of the Hon'ble Supreme Court that the Tribunal has no power to condone delay in filing Appeal under Section 30 of the RDB Act from the order of the Recovery Officer for the reasons stated therein, the condonation application under Section 5 of the Limitation Act deserves to be rejected and is accordingly rejected. Consequently, the Appeal; being Appeal No. 06 of 2013, stands dismissed being barred by limitation. Interim order stands vacated. No order as to costs.

8. I.A. 729 of 2018 filed on 26^th November, 2018 on behalf of the Respondents with prior service on the Appellant/Bank with prayer to vacate the premises; to pay rent or occupation charges by the Bank and to release the Lease Deeds. In spite of receipt of the I.A. no objection has been filed by the Appellant Bank.

5Appeal No. 06 of 2013- DRT-2 Kol

9. Considering the prayer, this Tribunal is of the opinion that the I.A. is not maintainable as the application lacks jurisdiction and there is no cause of action and, therefore, the I.A., being I.A. 729 of 2018, is dismissed accordingly.

Copy of the Judgment/Final Order be uploaded in the Tribunal's Website.

File be consigned to Record room.

Order pronounced by me in the open Tribunal on this the 20^th day of September, 2019.

Sd/- (M.S. Rao) Presiding Officer DRT-2, Kolkata

ac/jrc