VINODKUMAR PRASHOTTAMBHAI JOTANIYA vs CENTRAL BANK OF INDIA AND ORS on 24 July 2023

**ORDER**

1. 1. I have heard Ld. Counsel for the rival parties on the application for condonation of delay and perused the documents placed on record and I dispose of the application by this order.

2. 2. The Applicant has filed the present application for condonation of delay of 38 days in filing Miscellaneous Application for challenging the judgment passed by this Tribunal on 29/01/2019 in Original Application No.161 of 2018. The Respondent-Bank has filed its Preliminary Objection against maintainability of Delay Application vide Exh.R/8 and resisted the statements and averments made in the application.

3. 3. Ld. Counsel for the Applicant submitted that this Tribunal passed Judgment in Original Application No.161 of 2018 on

29/01/2019, but the Applicant came to know about the same only in the last week of November 2021 when the order of attachment passed by Ld. Recovery Officer in Recovery Proceeding No.3 of 2019 was affixed on the property in question. Thereafter the Applicant filed objections before Ld. Recovery Officer vide I.A. No.34 of 2022 on 28/01/2022. The said objections of the Applicant were decided by Ld. Recovery Officer vide order passed on 28/07/2022. During the course of hearing of objections, Ld. Counsel for the Respondent Bank raised objection before Ld. Recovery Officer and submitted that the Applicant has to file M.A. before Ld. Presiding Officer for adjudication of the mortgage. Thereafter Advocate of the Applicant made research on the position of law, which consumed some time and therefore the Applicant has filed the present M.A. on 07/07/2022. Ld. Counsel for the Applicant further submitted that in view of the judgment of the Hon'ble Supreme Court of India in Suo Motu Writ Petition (C) No.3 of 2020 dated 10/01/2022, delay of 38 days caused in filing Miscellaneous Application by the Applicant is required to be condoned.

1. 4. Per contra, Ld. Counsel for the Respondent Bank questioned maintainability of Miscellaneous Application u/s 19(25) of the RDB Act for challenging the judgment and order dated 29/01/2019 passed by this Tribunal in OA No.161/2018. He also submitted that the Applicant has not properly shown calculation of the days of delay in filing MA. The application is vague about period of delay. The Applicant has also not shown sufficient cause for condonation of delay and therefore, Ld. Counsel for the Respondent Bank urged to dismiss the present application.

2. 5. As against this, Ld. Counsel for the Applicant relied on the judgment of the Hon'ble Bombay High Court dated 07/12/2018 in Writ Petition No.2565 of 2018 in the case of Jairamdas M. Talreja V/s. Bank of Baroda and others and submitted that Miscellaneous Application before the DRT u/s 19(25) of the RDB Act would be maintainable.

1. 6. Considering the aforesaid submissions of rival parties, this Tribunal is of the opinion that the question of maintainability of Miscellaneous Application u/s 19(25) of the RDB Act would arise only after deciding the aspect regarding condonation of delay. So, it would be necessary first to decide whether the Applicant has been able to justify the delay in filing the Miscellaneous Application?

2. 7. It is the case of the Applicant that he came to know about the judgment dated 29/01/2019 passed by this Tribunal in OA No.161 of 2018 only in the last week of November 2021. Thereafter he availed the remedy before Ld. Recovery Officer by way of raising objection vide IA No.34 of 2022 and the same were disposed of by Ld. Recovery Officer on 28/07/2022.

3. 8. The Applicant has filed the present application for condonation of delay before this Tribunal on 07/07/2022 and stated that the Hon'ble Apex Court Suo Motu took cognizance of the situation arising due to Covid-19 pandemic and the difficulties faced by public at large. Consequently the Hon'ble Apex Court was pleased to extend limitation prescribed under the Limitation Act as well as special law for the period from 15/03/2020 till 28/2/2022 vide orders passed in Writ Petition (Civil) No.3 of 2020. As such, the said period i.e. from 15/03/2020 to 28/02/2022 is required to be excluded while computing period of limitation. Hence, Ld. Counsel for the Applicant prayed for condonation of delay of 38 days in filing the present M.A.

4. 9. Per contra, Ld. Counsel for the Respondent-Bank submitted that the Applicant has failed to show that there existed a sufficient cause for not preferring the M.A. within the stipulated period of limitation. He further submitted that delay is not mere formality and Applicant has failed to demonstrate each day of delay in filing M.A.

5. 10. Considering the fact that the the Hon'ble Supreme Court extended the period of limitation for all proceedings by passing orders from time to time in aforesaid Suo Motu Writ Petition. Lastly, the period of limitation was extended till

28/02/2022 by the Hon'ble Apex Court. However, the benefit of the orders extending limitation passed by the Hon'ble Apex Court would have been available to the Applicant if the Applicant would have filed Miscellaneous Application within the earmarked period from 15/03/2020 to 28/02/2022. In the present case, the Applicant has filed the present Miscellaneous Application on 07/07/2022 and therefore even after excluding the period of extension as laid down by the Hon'ble Apex Court, the present application is much beyond the outer limit of the extended period of limitation. As such, the present M.A. is clearly barred by limitation.

1. 11. Now, it is required to be seen whether the Applicant has been able to make out sufficient cause for delay in filing the present M.A.?

2. 12. In this context, it is necessary to refer to the following observations made by the Hon'ble Apex Court in the case of **Swadeshi Cotton Mills Co. Ltd. V/s. The Government of U.P. and others, MANU/SC/0662/1972:**

*"3..... The courts merely interpret the law and do not make law. Ignorance of law is not an excuse for not taking appropriate steps within limitation. Therefore, the arguments that the appellant did not know the true legal position is not one that can be accepted in law."*

1. 13. Looking to the facts of the present case, the reason assigned by the Applicant about time spent by his Advocate in making research about legal position cannot be considered as sufficient cause for condonation of delay.

2. 14. It is needless to point out that the Law of Limitation finds its route in two maxims, one of which is *vigilantibus et non dormientibus jura subveniunt*, which means that the law will assist only those who are vigilant about his rights and not those who sleep over them. In this context, a reference deserves to be made to the judgment of the **Hon'ble Apex Court in Basawaraj & others Vs. The Spl. Land Acquisition Officer, AIR 2014 SC 746:**

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*"15. The law on the issue can be summarised to the effect that where a case has been presented in the court beyond limitation, the applicant has to explain the court as to what was the "sufficient cause" which means an adequate and enough reason which prevented him to approach the court within limitation. In case a party is found to be negligent, or for want of bonafide on his part in the facts and circumstances of the case, or found to have not acted diligently or remained inactive, there cannot be a justified ground to condone the delay. No court could be justified in condoning such an inordinate delay by imposing any condition whatsoever. The application is to be decided only within the parameters laid down by this court in regard to the condonation of delay. In case there was no sufficient cause to prevent a litigant to approach the court on time condoning the delay without any justification, putting any condition whatsoever, amounts to passing an order in violation of the statutory provisions and it tantamounts to showing utter disregard to the legislature"*

15. Considering the facts and circumstances of the case and applying the aforesaid law laid down by the Supreme Court of India, this Tribunal is of the opinion that the Applicant has failed to make out a sufficient cause for the delay in filing the present M.A. The Applicant was not prevented from approaching this Tribunal on time. Therefore, condoning the delay in violation of the statutory provisions would tantamount to showing utter disregard to the legislature. Hence, the following order is passed:-

**ORDER**

➤ The Application for condonation of delay (Diary No.1430/2022) is hereby dismissed with no order as to costs.

File be consigned to records.

Pronounced in Open Court on 24^th Day of July, 2023.

3 (Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

\*ykb\*