Debts Recovery Tribunals and Appellate Tribunals

ANDHRA BANK vs M/s. Ishaan Infotech on 1 November 2023

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**IN THE DEBTS RECOVERY TRIBUNAL-II AT AHMEDABAD**

**(Laxman Madnani, Presiding Officer)**

M.A.(Delay) No.59 of 2019

Date of Filing : 23.11.2019

**UNION BANK OF INDIA**

....Applicant

Versus

**M/S.ISHAAN INFOTECH & ORS.**

....Defendants

Counsel for the Applicant Bank : Mr. Mohan Solanki Defendants : None present Date : 01.11.2023

**Order on Delay Condonation Application**

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1. 1. Heard the Ld. Counsel for the Applicant Bank on Delay Condonation Application on 19.10.2023 and none appeared for the Respondents.

2. 2. This is an application for condonation of delay in filing restoration application to restore the O.A.No.454/2018 which was dismissed for default. There is delay of 359 days, according to the Registry in filing the restoration application.

3. 3. Ld. Counsel appearing for the Applicant Bank submitted that on 30.10.2018, the Junior Advocate was to attend the matter on behalf of the Ld. Senior Advocate on record; however, he was not able to attend the matter on 30.10.2018, because he was out of station on 30.10.2018. As such, this Tribunal vide order dated 30.10.2018 dismissed the matter on the ground that the Applicant has failed to provide the documents to the Defendants, without giving an opportunity to the Applicant Bank to provide the set of documents to the Ld. Counsel appearing on behalf of the Defendants. Subsequently, a call was received from the Zonal Office by the Branch Manager, inquiring about the status of the matter and /

2M.A.No.59 of 2019(Delay)

accordingly, Branch Manager inquired the status of the matter with the Ld. Counsel on record. However, he was not aware about the proceedings and submitted that as and when the status and next date of proceedings is known, same shall be provided to the Applicant Bank. Thereafter, at first time on 11.06.2019, the Applicant Bank came to know that the matter was dismissed on default on 30.10.2018.

1. 4. It is further submitted that the status of the matter was informed to the higher authority of the Applicant Bank and permission was sought to file appropriate application before this Tribunal, which took some time, due to unavoidable circumstances. Therefore, the Applicant Bank had to file the present Misc. Application for condoning the delay in filing restoration application. As such, Ld. Counsel for the Applicant Bank submits that the delay be condoned and restoration application of OA be restored to file.

2. 5. In spite of service of notices upon the Defendants by way of RPAD on 11.12.2019 and by way of paper publication in 'Business Standard' on 18.04.2023, there is no representation on behalf of the Defendants.

3. 6. On going through the reasons mentioned in the application and also supported by the decision of Hon'ble Supreme Court in "**Rafiq & Anr. V/s Munshilal & Anr. 1981 AIR 1400**", wherein it is stated that the party should not suffer because of the absence of lawyer in Court and further there is also reason to condone the delay because the party was otherwise prosecuting the matter diligently that has not deliberately caused the delay.

4. 7. That apart, dismissal came to knowledge of the Applicant Bank on 11.06.2019; thereafter, application was filed by the bank after obtaining necessary instructions from its higher authority and in this circumstances, delay in filing restoration application was caused. The Tribunal has considered such explanation as sufficient one and 3M.A.No.59 of 2019(Delay)

find no infirmity in condoning the delay of 359 days. It is settled proposition of law that when substantial justice and technical consideration are pitted against each other, substantial justice ought to be preferred. By allowing applicant for condonation of delay and consequent restoration of O.A, no prejudice would be caused to the other side. However, any inconvenience caused due to dismissal of O.A and restoration thereof may be adequately compensated by way of imposing cost.

1. 8. In view of the above circumstances, the delay in filing application for restoration of O.A.No.454/2018 is hereby condoned, subject to payment of costs of Rs.25,000/- to the **Gujarat State Legal Services Authority, Gujarat High Court Complex, Sola, Ahmedabad** within a period of two weeks, failing to do so, would entail the application being dismissed.

2. 9. Delay condonation application stands disposed of.

3. 10. Upon payment of costs, Registry is directed to restore the Original Application to its original number. List the matter before the Ld. Registrar on 11.12.2023.

(LAXMAN MADNANI) PRESIDING OFFICER DRT-II, AHMEDABAD

/smita/

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