UCO BANK vs OFFICIAL LIQUIDATOR OF ZOOM DEVELOPERS PRIVATE LIMITED on 26 February 2024

1. By way of the present IA, the Applicant of IA i.e. Defendant No.2 to 9, 11 & 12 prayed to permit these Defendants to amend the written statement dated 15.01.2014 and insert the language set forth in the Scheduled annexed with the IA.

2. Ld. Counsel for the Defendant No.2 to 9, 11 & 12 submits that subsequent to the filing of the OA, these Defendants filed their written statement dated 15.01.2014 and raised certain substantial grounds. She submits that Defendants proposed to raise certain fundamental legal defenses to the claim of the Applicant in the OA as set forth in the Schedule annexed with IA. She also submits that a bare perusal of the Schedule will evidence that the defense proposed to be raised by Defendants are substantial and ought to be taken into consideration in order to determine the real questions in controversy in the OA.

3. She further submits that the parties have not yet commenced their arguments in the OA and no harm or prejudice will be caused to the Applicant if the present IA is allowed, thus, the present IA may be allowed and Defendants may be permitted to amend the written statement.

4. On the other hand, Ld. Counsel for the Applicant objected on the present IA and submits that these Defendants filed their written statement in the year 2014 and all the facts were already available with the Defendants at that time and now when the matter is at the stage of final hearing, the Defendants moved the present IA, just to delay the disposal of the present OA thus, he submits that the present IA may be dismissed with costs.

5. Having heard the Ld. Counsel for the parties.

6. At the outset, it is important to note here that there are around 23 matters including the present OA are pending against these Defendants for recovery of the aggregate amount of more than Rs.6751 Crore and all the Defendants are representing in the matter since the beginning and they have also filed their written statements.

7. The Defendant No.2 to 9, 11 & 12 filed their written statement on 15.01.2014 and thereafter now on 20.02.2023, they moved the application for amendment in the written statement therefore, there is necessity to analysis whether the amendment in written statement can be permitted at this stage after this length of period.

8. To consider the issue in hand, the relevant provision of the Recovery of Debts and Bankruptcy Act, 1993 (“RDB Act, 1993”)

are to be looked into. Section 19(5) of the RDB Act, 1993, provides that: “(5) (i) the defendant shall within a period of thirty days from the date of service of summons, present a written statement of his defence including claim for set-off under sub-section (6) or a counter-claim under sub-section (8), if any, and such written statement shall be accompanied with original documents or true copies thereof with the leave of the Tribunal, relied on by the defendant in his defence: Provided that where the defendant fails to file the written statement within the said period of thirty days, the Presiding Officer may, in exceptional cases and in special circumstances to be recorded in writing, extend the said period by such further period not exceeding fifteen days to file the written statement of his defence;” (emphasis provided highlighted portion by undersigned)

9. Thus, the reading of Section 19(5) of RDB Act, 1993, clearly shows that the written statement is required to be filed mandatorily within 30 days from the date of service of summons. Another period of days maximum can be granted, only in exceptional cases and in special circumstances, which are to be recorded in writing while granting extension by upto 15 days.

10. Admittedly, in the present case the Defendant No.2 to 9, 11 & 12 already filed their written statement on 15.01.2014 however, the present IA has been filed for amendment in the written statement on 20.02.2023 i.e. after the period of more than 9 years. Section 19(5) as recorded hereinabove provides maximum period of 45 days which include special circumstances also but by way of the present IA, the Defendants are seeking amendment after 9 years which is beyond the period of limitation and this Tribunal has no discretion to condone the delay in filing the written statement and further the amendment in written statement would also cannot be extend as this Tribunal has no discretion.

11. In the matter of New India Assurance Co. Ltd. Vs. Hill Multipurpose Cold Storage (P) Ltd.: (2020) 5 SCC 757 a constitution Bench of Hon’ble Apex Court has already held that there is no power to extend the time for filing response to the complaint beyond 45 days.

12. It is important to note here that Hill Multipurpose Cold Storage (P) Ltd. (supra) is pertaining to the Section 38(2)(a) of The Consumer Protection Act, 2019 which is para metria to Section 19(5)(i) of the Recovery of Debts and Bankruptcy Act, 1993.

13. Similar view is expressed by the Hon’ble Supreme Court in M/S SCG Contracts India Pvt. Ltd. Vs. K.S. Chamankar Infrastructure Pvt. Ltd. & Ors, (Civil Appeal No.1638/2019)

14. Thus, in the garb of the present application for amendment in written statement, the Defendant No.2 to 9, 11 & 12 are trying to extend their period for filing written statement which as such is not in the discretion of this Tribunal and further the Defendant No.2 to 9, 11 & 12 failed to give any sufficient reasons for filing the amendment application after the gap of 9 years, though the grounds mentioned in Schedule annexed with IA (which the Defendants sought to amend in written statement) were already available with the Defendants at the time of filing written statement.

15. Therefore, in the above facts and circumstances of the case, the present application for amendment in the written statement is hereby dismissed. IA No. 203/2023

16. By way of the present IA, the Applicant of IA i.e. Defendant No. 10(a) prayed to condone the delay of 65 days in filing the written statement.

17. Ld. Counsel for the Applicant of IA i.e. Defendant No.10(a) has stated that during the pendency of the OA, the erstwhile Defendant No.10 passed away and legal heir is impleaded as a party as Defendant No.10(a). She also submitted that a notice was received by the Defendant No.10(a) on 17.12.2022 however, there is some delay in filing his written statement as the Defendant No.10(a) is neither aware about the alleged transactions nor a party to any documents in favour of the Applicant therefore, the Defendant No.10(a) took some time to collect the relevant documents and prepare the written statement. Thus, she prayed that delay in filing the WS may be condoned.

18. Per contra, Ld. Counsel for the Applicant objected to the present IA and submits that the present IA is statutory barred owing to the limitation thus, the same may be dismissed.

19. Heard both sides and perused the record.

20. Admittedly, the Defendant No.10(a) is the legal heir of the Deceased Defendant No.10 and impleaded in the present matter vide order dated 17.10.2022 and thereafter, notice was issued to the Defendant No.10(a). The Defendant No.10(a) received the summons on 17.12.2022, however, no WS has been filed by the Defendant No.10(a) and moved the present IA on 20.02.2023 to condone the delay of 65 days.

21. As per Section 19 (5) (i) of the Recovery of Debts and Bankruptcy Act, 1993 (for short “the Act, 1993”), the Defendant shall file the written statement within a period of thirty days from the date of service of summons. The detail has already been provided in para 8 of the IA No.179/2023.

22. Thus, as per the provision of the RDB Act, 1993, the Defendant No.10(a) was required to file his written statement within 30 days.

23. Admittedly, in the present matter the Defendant No.10(a) failed to file the written statement within the period of 30 days, and filed the application for condonation of delay of 65 days on 20.02.2023, however, in terms of provision of Section 19(5)(i) of the Recovery of Debts and Bankruptcy Act, 1993, the right of the Defendant No. 10(a) has already been closed and this Tribunal has no power to condone the delay.

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24. In the matter of New India Assurance Co. Ltd. (supra), a constitution Bench of Hon’ble Apex Court has already held that there is no power to extend the time for filing response to the complaint beyond 45 days.

25. Thus, in view of the above, since the Defendant No.10(a) failed to file the written statement within prescribed time therefore, the present IA is hereby dismissed.

P.O. DRT-I