Debts Recovery Tribunals and Appellate Tribunals
Shrichand D Kishnani Deceased Through Legal Heirs Vivek S Kishani and Ors vs CANARA BANK on 14 May 2024
Presented on :
30.10.2023
Registered on :
02.11.2023
Decided on :
14.05.2024
Duration :
Y M D
00 06 14
IN THE DEBTS RECOVERY TRIBUNAL No.2, MUMBAI
MISCELLANEOUS APPLICTION NO.68 OF 2023
IN
APPEAL (D) No.2160 of 2023
IN
R.P. NO.602 OF 2004
IN
ORIGINAL APPLICATION NO.2599 OF 1999
1.
Shrichand
D.
Kishnani
(Deceased) through his Legal
Heirs
1a.
Vivek S. Kishnani
1b.
Pooja S. Kishnani Through it
Power of Attorney
1c.
Mohini S. Kishnani All Adults,
Indian
Inhabitant,
having
Address at 20/19, Ashirwad,
2nd Floor, Opp. Best Quarters,
Wadala (West), Mumbai 400031
2.
Sushil
M.
Kishnani
Adults,
Indian
Inhabitant,
having
Address at 304, Matru Chhaya,
378/80, N.N. Street, Mumbai
400009.
3.
Mohini
S.
Kishnani
Adult,
Indian
Inhabitant,
having
Address at 20/19, Ashirwad,
2nd Floor, Opp. Best Quarters,
Wadala
(West),
Mumbai
–
400031
4.
Sangeeta S. Kishnani Adults,
Indian
Inhabitant,
having
Address at 304, Matru Chhaya,
378/80, N.N. Street, Mumbai –
400009.
… Appellants
Versus
1.
Canara
Bank
Suijer
House,
74/76,
Kazi
Sayeda
Steet,
Mandvi, Mumbai 400003.
2.
Shri
Devandas
K.
Kishnani
(deceased)
Legal
Heir
Premkumar Devandas Kishnani,
adult, Indian Inhabitant Having
address at 20/19, Ashirwad, 2nd
Floor,
Opp.
Best
Quarters
Wadala
(West),
Mumbai
–
400031.
3.
Shamlal
Kishnani
(deceased)
through Legal heirs.
3(a).
Indu S. Kishnani (through Legal
heirs.
3(a)1.
Sharmila Satya Pradhan
3(a)2.
Aashna
Sunil
Thuthija
Both
3(a) 1 and 3(a) 2 adults, Indian
Inhabitants having address at
Akash
Hemrajani
(Executor),
Saraswati Building Flat No.31,
Opp. Blunt Salon 14th Road,
Khar West, Mumbai- 400052.
3(a)3.
Mrs. Sharmila Rajan Thakkar
Adult,
Indian
Inhabitant,
having
Address
at
20/19,
Ashirwad,
14th
Floor,
Tilak
Road Extn, Wadala, Mumbai –
400031.
3(a)4.
Mrs. Namrata Sunil Thuthija
Adult,
Indian
Inhabitant,
having
20/19,
Ashirwad,
4th
Floor, Tilak Raod Extn, Wadala,
Mumbai-400031.
4.
Om Prakash D. Kishnani Adult,
Indian
Inhabitant
having
Address at Gajra House Ground
Floor, Tilak Raod Extension,
Wadala, Mumbai – 400031.
5.
M/s.
Ganapati
International
Having address at 304, Matru
Chhaya,
378,
N.N.
Street,
Mumbai-400009
6.
M/s. Sai Overseas International
Having address at 304, Matru
Chhaya, 378/80, N.N. Street,
Mumbai – 400009.
7.
M/s.
Sai
Chemicals
A
Partnership,
having
address
304, Matru Chhaya, 378/80,
N.N. Street, Mumbai – 400009.
8.
Bagwati
D.
Kishnani
(Since
Deceased
through
here
legal
heirs)
Smt.
Indu
S.
Kishnani
(deceased) Through legal heirs
9(a)
Sharmila Satya Pradhan
9(b)
Ashan
Sunil
Thuthija
Akash
Hemrajani (Executor) Saraswati
Building Flat No.31, Opp. Blunt
Salon, 14th Road, Khar, West,
Mumbai – 400052.
…Respondents
APPEARANCES
For the Appellants
: Mr Herbert Noronha - Advocate
For
Respondent
No.1
: Ms Vaishali Bhilare – Advocate
For
Respondent
No.1(a)
: Ms Sonali Jain – Advocate
For
Respondent
Nos.2 to 9(b)
: None
Shri Deepak M Thakkar
Presiding Officer
HEARING
: 8th March 2024
PRONOUNCEMENT
: 14th May 2024
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J U D G M E N T
The appellants are the certificate debtors took exception to the order dated 18th August 2023 passed by the Recovery Officer (‘impugned order’).
During the pendency of the execution proceedings, the legal heirs of the Shrichand D. Kishnani, that is, (1a to 1c) and appellants 2 to 4 approached the 1st respondent for an amicable settlement. On 13th March 2023, appellant 1(a) sent an email to the 1st respondent proposing the settlement of Rs.4.5
crores. On 3rd May 22023, the 1st respondent approved the settlement proposal for Rs.4.5 crores. Based on the settlement between the appellants and respondent 1, on 19th May 2023, the appellants withdrew the Appeal No.5 of 2014. The 1st respondent did not object to withdraw the Appeal. Similarly, Saahil Kishnani and Others withdrew Appeal No.11 of 2019. On 25th May 2023, the 1st respondent confirmed having received Rs.4.50 crores towards full and final settlement of the dues against the certificate debtor/legal heir of Shrichand D. Kishnani (2nd defendant), Sushil M. Kishnani (5th defendant), Mohini s. Kishnani (10th defendant), Sangeeta S. Kishnani (12th defendant). Accordingly, defendants/legal representatives of the deceased defendant were released from the personal guarantee of liability by the 1st respondent.
On 22nd May 2023, the 1st respondent applied before the Recovery Officer and prayed as follows: “8. (a) The Ld. Recovery Officer be pleased to release the Defendant Nos.2(a), 2(b) and 2(c), Defendant No.5, Defendant No.10 and Defendant No.12 from the Recovery Proceedings No.602 of 2004; (b) The Ld. Recovery Officer be pleased to lift the attachment over the properties viz.
(i) Flat on 2nd and 3rd floor of the building known as “Ashirwad”, on Plot No.20/19, Tilak Road, Near Ambedkar College, Wadala, Mumbai – 400 031.
(ii) Office No.306, 3rd floor, Faiz-e-Qutabi Building, Narsi Nath
Street, Katha Bazar, Mumbai.
(c) For such other and further reliefs as the nature and circumstances of the case may require; Premkumar Devandas Kishnani, the legal representative of deceased Devandas K. Kishnani opposed the application and filed the reply affidavit dated 12th July 2023.
On 18th August 2023, the Recovery Officer rejected the 1st respondent’s application. Feeling aggrieved by the rejection of the application, the appellants preferred the Appeal belatedly. The appellants filed the waiver application and application to condone the delay.
The Ruling in International Asset Reconstruction Company of India Ltd. Versus Official Liquidator of Aldrich Pharmaceuticals Ltd. AIR 2017 Supreme Court 5013, the Hon’ble Supreme Court held in paragraph 14 which is reproduced below: “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.”
In view of the judicial proceedings, the question of condoning the delay does not arise.
Hence, the following order:
ORDER
(A) Miscellaneous Application No.68 of 2023 stands dismissed with no order as to costs. (C) Pending Interlocutory Applications stand disposed of.
Sd/- (Deepak M. Thakkar) Presiding Officer, DRT-2, Mumbai