KIRTI BRIJESH KHANNA vs STANDARD CHARTERED BANK on 24 January 2025

**ORDER**

1. 1. After hearing arguments of Ld. Counsel for both the parties on the application for Condonation of delay filed by the Applicant on 22.01.2025, I dispose of the same by this order.

2. 2. Ld. Counsel for the Applicant submitted that the present Applicant is neither borrower nor mortgagor/guarantor, but legal heir i.e. daughter of Respondent no.2, who was residing in the property in question and has filed the accompanying Securitization Application u/s 17 of the SARFAESI Act inter alia praying for quashing and setting aside the measures initiated by the Respondent on various grounds as mentioned in the memo of Securitization Application.

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1. 3. Ld. Counsel for the Applicant submitted that there is a delay of 22 days in preferring the above SA, from the date of issuance of possession notice u/s.13(4) of the Act, for taking symbolic possession of the property in question, which was pasted on the conspicuous part of the property in question.

2. 4. It is submitted that the Applicant is the co-owner of the property in question; however residing elsewhere and as such, Applicant was not aware about the proceedings initiated by the Respondent against the disputed property under SARFAESI Act, 2002. Further that, only when the Applicant visited the disputed property on 25.07.2024, the Applicant came to know about the possession notice dated 23.07.2024 u/s.13(4) of the Act, affixed on the conspicuous part of the disputed property. It is submitted that thereafter, sometime was consumed in finding suitable Advocate and also obtaining the certified copy of the order passed by the concerned Magistrate u/s.14 of the Act. It is submitted that some time was also consumed by the Applicant in gathering funds and in arranging for court fees and litigation expenses and that there is no deliberate delay in filing the present SA and that the delay occurred in taking legal advice and collecting documents from the office of concerned Magistrate, Surat. Further, Id. Counsel for the Applicant has placed on record vide purshis Ex.A/10, copy of order dated 21.12.2024 passed by Id. ACJM, Surat u/s.14 of the Act along with notice dated 07.01.2025 issued by Court commissioner for taking physical possession of the property in question on 09.02.2024, which gives rise to fresh cause of action to the Applicant to file the present SA. It is further submitted that the delay caused in filing the present SA is not intentional and is bonafide and the Applicant will suffer irreparable loss, if delay is not condoned. As such, the delay caused may be condoned in the interest of justice.

3. 5. Ld. Counsel for the Respondent submitted that he has gone through the application for condonation of delay so filed by the Applicant and submitted that Respondent No.1 has issued Demand Notice on 22.03.2024, against which, the Applicant herein has raised her objections on 06.05.2024, which was replied by the Respondent no.1 vide its reply dated 25.05.2024. As such, the Applicant was very well aware about the action/measures taken by the Respondent no.1 under the SARFAESI Act, 2002. It is submitted that the Respondent no.1 has taken symbolic possession of the property in question on 23.07.2024 and Applicant has failed to appear before this Tribunal within 45 days from the said notice, as such, the present application for condonation 3M.A. No.46 of 2024

of delay is misleading and not maintainable and is required to be dismissed with exemplary costs.

1. 6. I have heard Ld. Counsel for both the parties and gone through the record of the case.

2. 7. It appears from perusal of pleadings and submissions made by the Id. Counsel for both the parties that the possession notice dated 23.07.2024 issued by the Respondent no.1 for taking symbolic possession of property in question was affixed on the conspicuous part of the disputed property, and thereafter, sometime was also consumed by the Applicant in taking legal opinion of the Advocate and also gathering court fees and other expenses. Further, during the pendency of present Delay condonation application, Respondent Bank has also obtained order dated 21.12.2024 passed by Id. ACJM, Surat u/s.14 of the Act, subsequent to which, Court commissioner has issued notice dated 07.01.2025 for taking physical possession of the property in question on 09.02.2024.

3. 8. In order to appreciate the aforesaid submissions, it is pertinent to note that the Hon'ble High Court of Gujarat in the matter of *Manglesh Champaklal Gandhi in LPA No.224/2020*, has held that this Tribunal has discretion to condone the delay in filing application u/s.17 of SARFAESI Act, 2002 beyond the period of 45 days, as provisions of Section 5 of Limitation Act would apply and such discretion has to be exercised taking into consideration, the facts and circumstances on the aspect of sufficient cause as to whether the ground mentioned therein are sufficient to condone the delay or not. The reasons as explained by Applicant in her application for Condonation of Delay appears to be sufficient in the facts and circumstances of the above case and thus, the application for Condonation of delay deserves to be allowed in the interest of justice. Moreover, no prejudice of any nature will be caused to the Respondent as ultimately the matter would be decided on merits after hearing both the parties.

4. 9. In view of the aforesaid discussion, the present application for Condonation of delay is allowed and delay, if any, in filing SA is hereby condoned.

5. 10. Registry is hereby directed to register and number the accompanying SA.

6. 11. List the matter for hearing on 04.02.2025 before this Tribunal.

(PANKAJ KUMAR UPADHYAYA) PRESIDING OFFICER DRT-II, AHMEDABAD