MS NARAYAN AGENCY vs TATA CAPITAL FINANCIAL SERVICES LTD on 18 January 2020

J U D G M E N T

(Delivered on this 18t h day of January, 2020)

01.00 Applicants filed present M.A. to condone the delay of 379 days caused in filing the Securitization Application. 02.00 Application averments: It is submitted applicants filed S.A. challenging possession notice dated 19.06.2017. While filing the appeal, it was informed by the office that as possession notice dated 19.6.2017, the measure under SARFAESI Act, the office pointed out the delay in the S.A. and directed applicant to consider the cause of action fr om last SARFAESI action / measure taken by bank i.e Possession notice dated 19.6.2017. It is submitted that this application is filed within limitation.

The applicants are challenging possession notice dated 19.6.2017 and provided necessary instructions to the counsel and affirmed the S.A. on 19.7.2018. The counsel was supposed to file S.A. on the same day but in the meantime applicants tried to manage / arrange the requisite court fees but could not arrange on time and due to this inadvertence, the appeal stipulated period is expired and the S.A. is delayed by about 379 days. Therefore, the said period may be condoned. Respondent bank at one hand taking coercive action without following mandatory provisions of law and harassing without any sufficient cause. It is submitted that

Gvp/- in fact there is 379 days delay in this appeal, while computing the period of limitation to file S.A. and said period may kindly be excluded and condoned in the interest of justice. 03.00 Reply averments: Respondent bank filed reply vide Exh.9 wherein it is inter-alia submitted that possession notice dated 19.6.2017 was sent by respondent by following all the due procedures. It is denied that applicant took 379 days to arrange for court fees. It is denied that present appeal is within limitation. The applicant falls short of explaining any cogent and conclusive reason as to why the delay was caused in filing the application. The application is devoid of any merit and is only filed with an ulterior motive of stopping the respondent from recovering its legitimate dues and it needs to be dismissed on the ground that the condonation of delay application does not explain the delay properly and sufficiently. After grant of interim stay, applicant has deposited an amount of Rs.9 lakhs with the respondent on 18.9.2018, which is sufficient t o prove that applicant has money. As such, the reason that the applicant could not file the S.A. for want of court fees money is a blatant lie to misguide this Tribunal and finally submitted that this application deserves to be rejected with heavy costs. 04.00 Arguments heard. 05.00 Now, the point for determination is:

(i) Whether the delay can be condoned?

(ii) To what reliefs?

Gvp/- 06.00 Point no.(i): As can be seen from the tenor of pleadings and arguments, the undisputed facts in this case are that the concerned District Magistrate passed an order dated 8.7.2018 to take possession of the secured asset s by the respondent financial institution and it was challenged. For challenging any SARFAESI action, the prescribed period of Limitation is 45 days as per Sub-section 1 of Section 17 of the Securitization and Reconstruction of Financial assets and Enforcement of Security Interest Act (hereinafter to be referred as SARFAESI Act). Admittedly, this case was not filed within the said stipulated period of 45 days. This application is filed on 18.08.2008, admittedly with the delay of days. Applicants’ Advocate submits that upto 2019, the applicants made payments and that applicant complied with all orders passed by this Tribunal. Respondent Financial Institution’s Advocate submits that if at all applicants made the payments upto 2019, they will have receipts and they have knowledge of the developments and they could have filed the S.A. within the period of 45 days as stipulated under the provisions of SARFAESI Act. Respondent’s Advocate further submits that around Rs.2.5 Crore dues are to be recovered from the applicants and three residential flats are to be taken possession in pursuance of the Learned District Magistrate’s order dated 8.7.2018, which ought to have been challenged within 45 days from the date of receipt of notice. Respondent’s

Gvp/- Advocate further submits that admittedly there is inordinate delay of 379 days and it was not explained properly. Hence, this M.A. is liable to be dismissed with costs. As can be seen from the pleadings of the M.A., applicants have not at all mentioned any reason, much less reasons for this inordinate delay of 379 days. Section 5 of the Limitation Act enables a party to file a case up to the prescribed period of limitation provided the day to day delay has to be explained properly. That is the ruling of the Hon’ble Supreme Court in this field of Law. In the present case, the applicants have not at all explained any reasons, much less cogent reasons for this inordinate delay of 379 days. That apart, even as per the applicants, they affirmed the Securitization Application on 19.07.2018 and their counsel was supposed to file the S.A. on the same day, but in the meanwhile the applicants tried to manage / arrange requisite court fee but could not arrange the same on time and due to this inadvertence, the stipulated period of Limitation expired and the S.A. is filed with a delay of 379 days. This aspect also clearly shows that the applicants are having knowledge about the SARFAESI action and they have not paid the Court fee in time. Now, they are approaching this Tribunal with inordinate delay of 379 days, though the dues are to the tune of Rs.2.54 Crores. They are not making any payment proposal with regard to the said dues. In view of these reasons and as the delay is not explained properly, this

Gvp/- Tribunal see no reason to allow this application. Hence, this application is liable to be dismissed. Point no.(ii): In the result, this M.A. is dismissed.

Earlier interim protection / pending IAs, if any, are deemed to have been vacated / closed.

Each party do bear their own costs.

Nagpur

Dt.: 18.01.2020 (Chikkam Vijay Mohan) Presiding Officer Debts Recovery Tribunal Nagpur.