ANDHRA BANK vs MS NOVA METALS on 28 March 2019

JUDGMENT

(Delivered on this 28th day of March 2019 ).

This is an application filed by the Applicant to condone the delay of 194 days in filing the application for Restoration of OA.

2. Application averments: Applicant bank submits that OA No.39/10 was listed before this Tribunal on 25 .4.17 for hearing of OA and since the Advocate for the applicant Bank was not present and had not deposited the costs, the OA was dismissed for default vide o rder dated 25.4.17. W hen the Officer of the Applicant bank had been to the Tribunal, he came to know about the passing of the said order only on 17.11.2017 and that thereafter contacted the earlier Advocate. However no details or communication was receiv ed from hi m and as such applicant Bank contacted present advocate on 21.11.17 to take appropriate steps. Certified copies of the said order on 24.11.17 which was later handed over to the present advocate on 27.11.17 and the application came to be filed on 6.12.17 and, therefore, there is delay of 194 days. There is no deliberate or intentional delay or negligence on the part of the Applicant in approaching this Tribunal. In view of the reasons applicant sought condonation of delay of 194 days in filing application for restoration of OA.

3. Reply averments:- Respondents filed the reply in Exh.6 and resisted the application filed on behalf of Applicant Bank and submitted that there is no merit in the present application and that no case has been made out b y the applicant for condonation of delay and the contentions of the applicant are denied in toto and sought rejection of the application.

4. Arguments of both sides heard.

5. Now, the points for consideration are:-

(i) Whether the delay in filing restorati on application can be condoned? If so, on what terms and conditions ?

(ii) To what reliefs?

6. Point no.1: The contentions of the applicant are to the effect that the applicant bank sanctioned loan of Rs.4.8 Crores to the respondents and the present dues a re Rs.27 Crores and in pursuance thereof, it filed O.A. No.39/2010. He further submits that on 25.4.2017, said O.A. No.39/2010 was dismissed for default as the applicant bank’s empanelled advocate died and that his advocate son used to appear. He further submits that applicant bank could not track the performance of their advocate, as a result there was communication gap, due to which the applicant could not pay the costs, as a result of which the said O.A. was dismissed for default. Applicant’s advocate further submits that applicant bank will take due care after restoration of the O.A. and heavy public money has to be recovered from the respondents and in that way public interest is also involved in this case.

As against this, respondents’/defendants’ advocate submitted that the bank officials sold Rs.1 Crore worth of hypothecated goods for Rs.5 lakhs only and though they represented it to have been sold at Rs.17 lakhs. He further submits that 100 tonnes of goods were said to have been lifted, though 48 tonnes were brought on record and what happened to the remaining 52 tonnes. He further submitted that the then Bank officials who had not acted responsibly were transferred and one officer took retirement under VRS. So, in view of these contentions, it is necessary to adjudicate the O.A. No.39/2010 on merits to unravel the truth. That apart, huge amount of Rs.27 Crores is involved and the defendants cannot be allowed to enjoy that benefit simply because of the lack of communication between the applicant bank and it’s the then advocate and thereafter his advocate son. Present AGM of the applicant bank present in the Court hall today and he submits through his advocate that due diligence will be taken for pursuing this matter after its restoration. In view of the reasons stated in this application and the reasons discussed above, this Tribunal feels it just and proper to condone the delay caused in filing the restoration application by way of allowing this M.A, however, with the following conditions:- I] Applicant should pay/deposit costs that were imposed earlier in the O.A.39/2010 within a week.

Ii] In addition to the said costs mentioned in condition no.(i), applicant should pay costs of Rs.1000/- to “Army Welfare Fund Battle Casualties” Account of Syndicate Bank, South Block Branch, New Delhi (IFSC Code: SYNB0009055), with Account number 90552010165915 within a week. iii) Applicant should loose costs of Rs.10,000/- in the O.A. iv) If the condition nos. (i) to (iii) above are complied, Registrar to number the restoration application, if otherwise in order and post the matter before the P.O. for hearing and further proceedings on 11.4.2019.

Nagpur

Dt.: 28.03.2019 (Chikkam Vijay Mohan) Presiding Officer Debts Recovery Tribunal Nagpur.