MADHAV LAXMAN KALE vs IDBI BANK on 6 December 2023

**ORDER**

1. This order of mine shall dispose of the Miscellaneous Application bearing No.83 of 2022.

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2. It is the plea of the Applicants' that this Tribunal was pleased to pass an Interim Order on 20.11.2019 rejecting I.A. No.1368 of 2019 filed by the Applicants and further, the Respondent Bank has taken the physical possession of the secured asset. The Advocate appointed by the Applicants did not pursue the matter nor informed the date on which the matter was posted. The Applicants were unaware that the matter was posted on 02.08.2022 for Respondent Bank to file Reply to main S.A. and for final hearing. Since the Applicants were unaware of the date, they were not present when the matter was called out and this Tribunal has dismissed the S.A. No.173 of 2019 vide Order dt.02.08.2022 for non-appearance of the Applicants. So, due to mistake of the advocate on record, the Applicants lost the opportunity to proceed with the matter. On 10.10.2022, the Applicants came to know the dismissal of S.A. No.173 of 2019. Therefore, the present Miscellaneous Application has been filed by the Applicants for setting aside the Order dt.02.08.2022 and to condone the delay, if any, in filing this Application.

3. The Respondent Bank by way of Reply has opposed the Applicants' plea stating that the Applicants are trying to take benefit of their own wrong by not attending the matter and now blaming the counsel for not providing the date on which the matter was posted. It was the duty of the Applicants to take due

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diligence and timely follow-up of the matter filed by the Applicants and thus, the Applicants intentionally avoided to appear before this Tribunal that too not for the first time on 02.08.2022 but also failed to appear on the last occasion i.e. on 24.05.2022, which was rightly observed by this Tribunal and pleased to issue directions to the Applicants that 'if the Applicant does not appear on the next date of hearing then the matter shall be disposed of accordingly'. Despite clear directions, the Applicants did not appear either personally or through the advocate on 02.08.2022 which itself shows that the Applicants were not interested to proceed further with the proceedings.

4. The Respondent Bank further contended that how the Applicants came to know regarding dismissal of the S.A. No.173 of 2019 by Order dt.02.08.2022 is not stated and if the Applicants came to know about the Order then the Applicants were having complete knowledge of the dates and directions given by the Tribunal. The Respondent Bank further contended that the Applicants have not come with clean hands before this Tribunal and are narrating concocted stories which is devoid of any merits. If the Applicants were having such an emergency then why the Applicants waited even after getting the certified copy on 31.10.2022 and then filed the present application on

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10.11.2022. The Applicants failed to give genuine reason for not filing the present application within the limitation period. The reasons given by the present application are vague which are not supported by any documentary evidence. The Respondent Bank further states that Roznama dt.22.10.2021 clearly shows that the as per the instructions of the Applicants, another Advocate Mr. Nikhil Salvi appeared for the Applicants and had undertaken to file Vakalatnama in the matter but on the next date no one appeared for the reasons best known to the Applicants. The Applicants also failed to show from where they got the knowledge of dismissal of the matter on 10.10.2022. By filing such false and bogus application, the Applicants are restricting the Respondent bank from recovering the dues by attaching/selling the mortgaged properties. Thus, the present delay condonation application is liable to be dismissed.

5. This Tribunal has heard the counsel for the Applicants and for the Respondent Bank at length.

6. After giving due consideration of the arguments of the respective counsel for the parties, this Tribunal is of the view that the delay be not condoned as vide Order dt.22.10.2021, the Advocate for the Applicant had appeared and it was ordered that there was no Bar against the Respondent Bank to proceed as per the SARFAESI Rules and Act and taking possession and

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case was adjourned to 11.01.2022 for filing Reply by the Respondent Bank to the S.A. and case was adjourned time and again and on 24.05.2022, the Applicants remained absent and in that Order, it was made clear that in case the Applicants do not appear on the next date of hearing then matter shall be disposed of accordingly and on the subsequent date i.e. 02.08.2022, the Applicants remained absent whereas, counsel for the Respondent Bank came present and this Tribunal was constrained to dismissed the S.A. No.173 of 2019 for want of prosecution.

7. It is the plea of the Applicants that the Applicants' counsel did not inform them about the proceedings which is a fabricated plea because orders of this Tribunal are uploaded on the website. If the Applicants' counsel was not appearing then the Applicants should have taken appropriate remedy against the Advocate appointed by the Applicants or the Applicants could have come present in person or could have engaged other Advocate. This Application for restoration of Securitisation Application No.173 of 2019 has been filed after delay of 49 days, which is in the opinion of this Tribunal and in the circumstances of the case, cannot be condoned and accordingly, this Miscellaneous Application No.83 of 2022 stands dismissed.

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8. Copies of this Judgment be sent to the parties free of cost and file be consigned to Record Room.

Given under my hand and the seal of this Tribunal on this date : 06.12.2023.

Dictated on 06.12.2023.

Typed By - S.S. Dhawale, PS

*Arun Kumar* (ARUN KUMAR SINGAL) PRESIDING OFFICER DRT-III, VASHI, NAVI MUMBAI

**DRT-III MUMBAI**