Ashok Kumar Mondal vs UCO BANK on 27 September 2019

1. 1. Technocraft Industrial Enterprises (India) Private Limited, Jagatpur, P.O. - Brindabanpur, Uluberia, Howrah - 711 316;

2. 2. Samir Kumar Mondal, Jamberia, P. O. Kushberia, Howrah - 711 316;

3. 3. Prabir Kumar Mondal, Jamberia, P. O. Kushberia, Howrah - 711 316;

4. 4. Ashim Kumar Mondal, Jamberia, P. O. Kushberia, Howrah - 711 316;

5. 5. Utpal Kumar Mondal, Jamberia, P. O. Kushberia, Howrah - 711 316;

6. 6. Mrs. Tara Rani Mondal, Jamberia, P. O. Kushberia, Howrah - 711 316;

7. 7. Sankar Banerjee, 14/A, Haripada Dutta Lane, Kolkata 700 033;

8. 8. J.P. Singh, 37/B, Ballygunge Place, Kolkata 700 019;

9. 9. Swapan Kumar Basu, 1/C, Jogendra Garden, Kolkata 700 078;

10. 10. Mrs. Santa Basu, 1/C, Jogendra Garden, Kolkata 700 078.

- Proforma Respondents

Counsel for parties:

For the Appellant : Mr. Prasenjit Pal, Counsel

For the Respondents : Mr. S. Basu, Counsel **FINAL ORDER / JUDGMENT**

(Delivered on 27^th September, 2019)

This appeal has been filed under Section 30 of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993 by one Sri Ashok Kumar Mondal against the order dated 19^th November, 2010 passed by learned Recovery Officer-I, Debts Recovery Tribunal-2, Kolkata in R.C. Case No. 17 of 2008 (Annexure H).

The facts of the case, in brief, may be stated as under:

2. The father of the Appellant, Sri Gopal Chandra Mondal and others, took loan from UCO Bank for recovery of which the said Bank filed a suit, being Title Mortgage Suit No. 178 of 1993, before the learned Assistant District Judge, Uluberia, Howrah, which after coming into force of the Recovery of Debts Due To Banks And Financial Institutions Act, 1993, stood transferred to this Tribunal and registered as T.A. 251 of 2001. The said T.A. was decided by this Tribunal and it was ordered that the claim of the Applicant Bank for recovery of Rs.19,75,284.70 was allowed against the Defendants and the said Defendants were directed to pay the above amount jointly or severally alongwith interest at the rate of 13% per annum from December, 15, 1983 till full realization. The properties enumerated in the schedules of the claim application as well as personal properties of the Defendants No. 2 to 7 shall remain under the possession of the Branch Manager of the Bank. Accordingly, Recovery Proceedings, being R.C. 17 of 2008, was commenced. During the course of the Recovery Proceedings, Defendant No. 2, Gopal Chandra Mondal, died and this fact was brought to the notice of the Recovery Officer by the Bank through substitution application in 2009 informing that Gopal Chandra Mondal died two years back. By an order dated 17^th March, 2009, the Recovery Officer directed substitution of the present Appellant and his four brothers who are legal heirs of the deceased Gopal Chandra

Mondal in place and stead of Defendant No. 2 i.e. Gopal Chandra Mondal since deceased.

3. Subsequently, a Receiver was appointed in the said Recovery Proceedings and as per order of the Recovery Officer, the godown of Late Gopal Chandra Mondal was sealed and during the sealing process, a Maruti Omni car, bearing registration No. WB-12A-3820 was also seized. Claiming that the said Maruti car belonged to him, the Appellant filed a petition before the Recovery Officer praying for release of the said Maruti car on the ground that this car was his personal property which he purchased from his own earnings after taking loan from M/s. APJ Finance Group for a sum of Rs.1,93,500.00 and the balance Rs.36,977.00 he spent from his own pocket and he claimed that since the car belonged to him, it could not be attached or seized as it was neither his father's property nor was it purchased from his father's earnings. The Recovery Officer vide his order dated 19^th November, 2010 dismissed the said petition on the ground that the appellant failed to produce any evidence to show that he spent Rs.36,977.00 from his own for payment towards the part price of the car though the car was registered in his name. Being aggrieved, the present Appeal has been preferred on 2^nd March, 2011.

4. Since there was delay beyond thirty days, an application under Section 5 of the Limitation Act has also been filed by the Appellant. In the said application it has been averred that he (Appellant) obtained certified copy of the order dated 24^th December, 2010 and thereafter due to Christmas Vacation, he could not contact his advocate and ultimately he held a conference with his advocate on 6^th January, 2011 and he was advised to file an appeal against the order dated 19^th November, 2010. The Memorandum of Appeal was drawn up on 24^th February, 2011 and it was ready on 2^nd March, 2011 and filed before this Tribunal on the same date, i.e. on 2^nd March, 2011. In the process, there was delay of ninety two days. The time for filing appeal, as per the statute, is thirty days and, therefore, there was clear sixty two days delay. It is submitted that the delay was not deliberate and the Appellant was diligent in pursuing the case and due to intervening Christmas Vacation and for consultation with the learned advocate delay has occurred which was not intention and may be condoned.

5. Respondent Bank has opposed the application for condonation of delay and has stated that copy of the order dated 19^th November, 2010 of the Recovery Officer was handed over to the Appellant after seven days and still the Appellant took so much time to prepare the Memorandum of Appeal and filing the same before this Tribunal. The reasons adduced are not at all convincing, therefore, they prayed for dismissal of the condonation application.

6. Admittedly, there was delay of sixty two days in filing this appeal by the appellant. The pertinent question, therefore, arises as to whether this Tribunal can condone the delay in filing an Appeal under section 30 of the Act. The answer can be found in the following decision of the Hon'ble Apex Court.

7. 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)*

8. 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. 02/2011 stands dismissed being barred by limitation. Interim order stands vacated. No order as to costs.

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 27^th day of September, 2019.

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

ac/jrc