NEERAJ AGARWAL So JUGAL KISHORE AGRAWAL vs KOTAK MAHINDRA BANK LIMITED on 6 October 2023

**ORDER**

1. 1. The Applicant has filed the present application seeking condonation of delay of 114 days in preferring application 2M.A. No.40/2023

u/s 19(25) of the Recovery Of Debts And Bankruptcy Act, 1993 (hereinafter referred to as "RDB Act") and for other incidental reliefs. The Respondent Bank has filed its reply to the present application resisting the same on various grounds.

1. 2. I have heard Ld. Counsel for the 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. 3. Ld. Counsel for the Applicant submitted that the Applicant has preferred an Appeal challenging the Attachment Order dated 26/09/2022 passed by Recovery Officer, DRT-II, Ahmedabad. The Applicant is residing at United States of America. After coming to know about the impugned order, he immediately contacted his Advocate in India and supplied necessary details and documents. He further submitted that due to procedural formalities, some time was consumed in drafting and finalizing the Appeal Memo. As such, delay has been caused in preferring the Appeal.

3. 4. Ld. Counsel for the Applicant submitted that he is a third party so far as proceedings of Original Application No.66 of 2003 or Recovery Proceedings No.132 of 2012 are concerned. He is also not a Certificate Debtor qua the said proceedings. He further submitted that Applicant is a joint owner and having share in the property attached by

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the impugned order dated 26/09/2022. The notice of attachment was affixed on the property on 26/09/2022. But the Applicant was not in India at that time and he was residing in USA. So, he was not aware about affixation of the said notice. The Applicant was also not aware about the order of attachment passed by Ld. R.O. When he came to know about the impugned order, he immediately took necessary steps to initiate legal proceedings against the said for protection of his interest in the property and preferred Application (Appeal) on 16/02/2023. Ld. Counsel for the Applicant further submitted that this Tribunal has power u/s 19(25) of the RDB Act to condone the delay caused in preferring Appeal against the impugned order. As such, he requested to condone the delay in the interest of justice and to register the Application (Appeal) filed vide Diary No.296 of 2023.

1. 5. Per contra, Ld. Counsel for the Respondent-Bank submitted that the present Miscellaneous Application (for condonation of delay) is not verified or affirmed by the Applicant and it is signed by Advocate for the Applicant. Hence, it is not maintainable.

2. 6. Ld. Counsel for the Respondent-Bank further submitted that the records of RP No.132/2012 would show that the CDs were served with the Demand Notices through RPAD on 13/10/2020 and the Respondent Bank has filed its 4M.A. No.40/2023

service affidavit dated 28/10/2020. Thereafter the CDs were served with the notices u/s 28(4A) of the RDB Act through RPAD on 01/01/2021 and the Respondent Bank has filed its service affidavit dated 03/03/2021. All such notices were served at Jaipur address of CDs. The CDs were further served with Show Cause Notices issued u/s 25(b) of the RDB Act by RPAD on 10/04/2021 and the Respondent Bank has filed service affidavit dated 10/05/2021.

1. 7. Ld. Counsel for the Respondent-Bank further submitted that this Tribunal issued Form No.16, 52 and 53 with respect to attachment of personal properties of CD Nos.3 & 4. The said forms were served to a care-taker / watchman present at Jaipur property personally and they were also affixed on the gate of the property on 14/10/2022. A detailed service affidavit in that regard dated 17/10/2022 was filed by the Respondent-Bank in RP No.132/2012.

2. 8. Ld. Counsel for the Respondent-Bank further submitted that the Applicant has failed to show that there existed a sufficient cause for not preferring the Appeal within the stipulated period of limitation. She further submitted that delay is not mere formality and Applicant has failed to demonstrate each day of delay in filing Appeal.

3. 9. Ld. Counsel for the Respondent-Bank further submitted that Appeal has been provided u/s 30 of the RDB Act if

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any person is aggrieved by the order passed by Ld. Recovery Officer. The Applicant has relied on the provisions of Section 19(25) of the RDB Act for challenging the impugned order by way of an application. Therefore, the present application is not maintainable.

1. 10. Considering the submissions of parties and perusing the record, it appears that the Applicant has sought to prefer an Appeal by way of Diary No.296/2023 against the impugned order dated 26/09/2022 passed by Ld. Recovery Officer (though it is portrayed as Application u/s 19(25) of RDB Act).

2. 11. It would be worthwhile to refer to Section 30 of the RDB Act, which reads as under:

**"30. Appeal against the order of Recovery Officer.—**

*(1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.*

*(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 to 28 (both inclusive)."*

1. 12. On perusal of the aforesaid provision, it becomes clear that any person aggrieved by an order of the Recovery Officer made under the RDB Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal. In the present case, the Applicant has filed Appeal before this 6M.A. No.40/2023

Tribunal on 16/02/2023. The Applicant was aware about the order dated 26/09/2022 and Notices issued by this Tribunal for attachment of the property in question at least since 14/10/2022 when the same were affixed on the property and were personally served to the care-taker of the property. The Applicant has deliberately remained silent as to when he came to know about the impugned order dated 26/09/2022. It is the case of the Applicant that he was not aware about recovery proceedings because he was not a Certificate Debtor. But it is required to be noted that how the Applicant can expect this Tribunal to serve the order / Notices of attachment of the property if he is not a Certificate Debtor. If the Applicant has got alleged interest in the property and wanted to raise objection against attachment of the property, he could have preferred Appeal u/s 30 of the RDB Act within a period of 30 days from 14/10/2022 i.e. the date of service of notices to the care-taker / watchman and affixation thereof on the gate of the property in question. The Applicant, being a third party, failed to approach this Tribunal by way of Appeal against the impugned order within the prescribed time-limit of 30 days. It can be presumed that the care-taker / watchman must have been engaged by the CDs as well as the present Applicant. Therefore, the Applicant can be supposed to have been intimated by the care-taker / watchman 7M.A. No.40/2023

having received and acknowledged notices of attachment on behalf of CDs. As such, knowledge about the impugned order dated 26/09/2022 can be said to be from the service of notice and affixation thereof on the property i.e. from 14/10/2022. As such, the Applicant ought to have preferred an Appeal challenging the impugned order on or before 14/11/2022. As stated hereinabove, the Applicant has filed the Appeal on 16/02/2023. Hence, there is a delay of 125 days in filing the Appeal, which is sought to be condoned by the Applicant.

1. 13. Now the question of law arising in the present case is whether Section 5 of the Limitation Act, 1963 can be invoked to condone the prescribed period of 30 days, under Section 30(1) of the RDB Act for preferring an appeal before the Tribunal, against an order of the Recovery officer.

2. 14. In this context, it would be appropriate to refer to the judgment of the Hon'ble Apex Court in the case of **International Asset Reconstruction Company of India Ltd. V/s. The Official Liquidator of Aldrich Pharmaceuticals Ltd. And others, decided on 24/10/2017 in Civil Appeal No.16962 of 2017 (arising out of SLP (C) No.25815 of 2013).**It has been held therein as under: /

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*"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."*

1. 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 condoning the delay in violation of the statutory provisions would tantamount to showing utter disregard to the legislature. Hence, the following order is passed:- 9M.A. No.40/2023**ORDER**

➤ The Application for condonation of delay (M.A. No.40/2023) is hereby dismissed with no order as to costs.

File be consigned to records.

Pronounced in Open Court on 6^th Day of October, 2023.

(Laxman Madnani) Presiding Officer DRT-II, Ahmedabad

\*ykb\*