PRAKASH M. RAJGOR vs SOUTH INDIAN BANK on 22 February 2024

1. 1. The Applicants have filed the present application for condonation of delay of 67 days. The Respondent Bank has filed its reply to the present application vide Exh.R/7 and has denied and resisted the statements and averments made in the application.

2. 2. The Applicants have averred that in pursuance to the order dated 07/10/2023 passed by this Tribunal in SA No.136/2023, the Applicants have deposited 10% of the outstanding amount of Rs.82 Lacs with the Respondent Bank till date. However, the Applicants were facing financial crunch and hardship and due to some unavoidable circumstances, the Applicants could not arrange funds of the remaining amount to be deposited with the Respondent Bank as per the settlement terms and thereafter the Applicants have filed present Miscellaneous Application for extension of time before this Tribunal with delay. Hence, the Applicants have prayed for condonation of delay.

1. 3. The Respondent Bank has contended in its reply that the application seeking condonation of delay is not maintainable and hence, required to be rejected. It has also contended that no cogent reasons are submitted by the Applicants to show as to why the present application is filed beyond the period of limitation. The present application is nothing but delay tactics to hamper the recovery process of the Respondent Bank and hence, the present application is liable to be rejected.

2. 4. I have heard Ld. Counsel for the rival parties on the application for condonation of delay and perused the documents placed on record.

3. 5. Considering the averments made by the Applicants and submissions made by the parties, it is pertinent to note that the Applicants approached Hon'ble DRAT, Mumbai by means of Appeal (Diary) No.299/2024 challenging the order dated 12/02/2024 passed by this Tribunal refusing to take the application for extension of time filed together with the application for condonation of delay in SA No.136/2023 which was already disposed of. In the said Appeal, Hon'ble DRAT, Mumbai has passed order dated 15/02/2024 directing this Tribunal to hear the application for condonation of delay and extension of time on 20/02/2024. Accordingly, this Tribunal has heard Ld. Counsel for the parties on both the said applications.

4. 6. It is the case of the Applicants that they were facing financial crunch and hardships, they could not approach this Tribunal for extension of time for payment of the agreed dues. Looking to the intention of the Applicants to pay the dues of the Respondent Bank and considering the reason assigned by them for delay in approaching this Tribunal for extension, this Tribunal is of the opinion that the delay caused in filing Miscellaneous Application for seeking extension of time deserves to be condoned in the

interest of justice. Accordingly, Miscellaneous Application No.10 of 2024 for condonation of delay is hereby allowed and the delay in filing Miscellaneous Application is condoned.

1. 7. Coming to Miscellaneous Application (Diary) No.59 of 2024 for extension of time in payment of the remaining settlement amount, it is pertinent to note that SA No.136 of 2023 was disposed of vide order dated 07/10/2023 on the basis of the undertaking filed by the Applicants vide Exh.A/12 to the effect that the Applicants would deposit the entire outstanding amount within a period of three months, out of which they would deposit 10% of the outstanding amount on 07/10/2023 itself and further remaining outstanding amount within a period of three months from the said date. After depositing 10% of the outstanding amount, the Applicants could not deposit the remaining amount within stipulated period of three months for the reasons stated above. Now they have come before this Tribunal seeking extension of time for payment of the remaining amount.

2. 8. In the aforesaid facts and circumstances, a reference deserves to be made to the judgment of the Hon'ble Supreme Court of India in the case of **Balwantbhai Somabhai Bhandari V/s. Hiralal Somabhai Contractor and others, decided on 06/09/2023 in Civil Appeal No.4955 of 2022**. It has been held therein:

*"(i) We hold that an assurance in the form of an undertaking given by a counsel / advocate on behalf of his client to the court; the wilful breach or disobedience of the same would amount to "civil contempt" as defined under Section 2(b) of the Act 1971.*

*(ii) There exists a distinction between an undertaking given to a party to the lis and the*

*undertaking given to a court. The undertaking given to a court attracts the provisions of the Act 1971 whereas an undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the Act 1971. In the facts of the present case, we hold that the undertaking was given to the High Court and the breach or disobedience would definitely attract the provisions of the Act 1971."*

1. 9. Considering the aforesaid observations made by the Hon'ble Apex Court, breach or willful disobedience of the Undertakings given by the Applicants before this Tribunal would definitely attract the provisions of Contempt of Court, 1971. However, instead of initiating the proceedings for contempt of Court against the Applicants, this Tribunal deems it proper to dismiss the application for extension of time. Accordingly Miscellaneous Application (Diary) No.59 of 2024 for extension of time is dismissed.

Pronounced in open Court today on this 22^nd day of February 2024.

(LAXMAN MADNANI) Presiding Officer, DRT-II, Ahmedabad

\*ykb