Debts Recovery Tribunals and Appellate Tribunals
Kanjibhai Narshinhbhai Makwana vs Cholamandalam Investment and Finance Company Ltd on 14 July 2023
Exh 9
Diary No.805 /2023
**IN THE DEBTS RECOVERY TRIBUNAL-II AT AHMEDABAD**
**Present: Laxman Madnani, Presiding Officer**
**DIARY No.: 805 OF 2023**
**IN**
**CIVIL MISCELLANEOUS APPLICATION No. \_\_\_\_\_ OF 2023**
**IN**
**SECURITISATION APPLICATION No.680 OF 2022**
Date of Order : 14/07/2023
Kanjibhai Narsinhbhai Makwana
and others
..... Applicants
**Versus**
Cholamandalam Investment &
Finance Co. Ltd.
..... Respondent
**Present:** Ms. Harshada Darji, Ld. Counsel for Applicants Ms. Nazia Halwawala, Proxy on behalf of Mr. Ritesh Patadia, Ld. Counsel for the Respondent-FI
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
**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 Applicants have filed the present application for condonation of delay of 35 days in filing Civil Miscellaneous Application. The Respondent-FI has filed its reply against the application for condonation of delay and resisted the averments made by the Applicants in their application.
1. 3. Ld. Counsel for the Applicants submitted that as per the order dated 05/11/2022 passed by this Tribunal in SA No.680 of 2022, the Applicants were required to repay the entire amount to the Respondent-FI by 05/02/2023. However, the Applicants could not comply with the Undertaking given by this Tribunal on 05/11/2022. She further submitted that the Applicants have almost paid the entire amount as per the OTS and the Applicants could not pay the balance amount for the reasons beyond their control. The Applicants have deposited Rs.75,38,000/- out of total Rs.80 Lacs and an amount of Rs.4,62,000/- remains to be deposited by the Applicants as per the OTS. The Applicants are ready to pay the balance amount.
2. 4. Ld. Counsel for the Applicants further submitted that the Respondent-Bank has issued notice dated 01/03/2023 for taking possession of the property in question. There was no intention on the part of the Applicants to delay in filing Civil Miscellaneous Application. The Applicants requested the Respondent-FI to extend time for payment as the Applicants were ready and willing to pay the remaining amount along with interest. As negotiations were going on with the Respondent-FI about payment of the balance amount, there is a delay of about 35 days in filing Civil Miscellaneous Application, after excluding period of 30 days from the date of notice of the Respondent-FI dated 01/03/2023.
3. 5. Ld. Counsel for the Applicants further submitted that the Applicants have a good case to defend and if no opportunity is given to contest the legal action taken by the Responden-FI, irreparable loss will be caused to the Applicants, which cannot be compensated in terms of money.
1. 6. Per contra, Ld. Counsel for the Respondent-FI submitted that there is a delay of more than 160 days from the final order dated 05/11/2022 passed by this Tribunal in SA No.680/2022. She has further submitted that as per the settlement letter dated 05/11/2022, the Applicants were supposed to pay the entire amount by 05/02/2023. Therefore, if the Applicants wanted any extension of time for payment, they ought to have filed application before 05/02/2023. The Applicants have failed to do so and hence, the Respondent-FI has issued possession notice dated 01/03/2023 for taking physical possession of the property in question on 09/03/2023. As such, the Applicants are required to file a fresh Securitisation Application if at all they are aggrieved by the Possession Notice dated 01/03/2023 and present Miscellaneous Application is not maintainable for the purpose of challenging the said action of the Respondent-FI. Therefore, the present application may be dismissed.
2. 7. I have heard Ld. Counsel for both the parties and perused the documents placed on record.
3. 8. Considering the fact that S.A. No.680/2022 was disposed of by this Tribunal vide order dated 05/11/2022 and the Applicants were required to make the final payment of settlement amount by 05/02/2023, the Applicants have failed to comply with the said terms of settlement. In view of the undertaking given by the Applicants on 05/11/2022, if the Applicants failed to abide by the terms thereof, the Respondent-FI is entitled to take further action under SARFAESI Act for recovery of its outstanding dues. Under these circumstances, it is an admitted position that the Applicants have failed to comply with the terms of undertaking dated 05/11/2022. Therefore, the Respondent-FI has issued Possession Notice dated 01/03/2023. If the Applicants are aggrieved with such /
action of the Respondent-FI, they have a remedy of filing fresh Securitisation Application u/s 17 of the SARFAESI Act and not Miscellaneous Application. Therefore, the present Miscellaneous Application is totally misconceived. Moreover, the Applicants have also not shown any cogent or convincing reason for delay.
1. 9. Considering the facts and circumstances of the case this Tribunal is of the opinion that the Applicants have failed to make out a sufficient cause for the delay of 35 days in filing the present MA. Hence, I pass of the following order:-
**ORDER**
- ➤ The Application for condonation of delay (Diary No.805/2023) is hereby dismissed with no order as to costs.
File be consigned to records.
Pronounced in Open Court on 14<sup>th</sup> Day of July, 2023.
(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad
\*ykb\*