MR SAGAR ARUN RAUT vs UNION BANK OF INDIA on 7 May 2019

J U D G M E N T

(Delivered on this 7 t h day of May, 2019)

This is an application for condonation of delay of 64 days in filing the appeal. 02.00

The brief facts of the applicants’ case are the appellant is a legal heir of deceased defendant no. 3 si c who expired on 08.08.2006 and subsequently bank moved an application to bring the legal heirs on record only on dtg/- 07.11.2006. The appellant was having jaundice in the month of October because of which he is advised to take bed rest. The order was passed on 6 t h October, 2016. However, due to the illness he was restrained from approaching the court. Appellant further submits that only after recovery, he was in a position to engage an advocate in the 2 n d week of November but due to sudden demonetization policy of the Government, he was again incapacitated from approach ing the Tribunal as the funds availability was also scarce. Because of these reasons, there was delay of 64 days in filing the appeal. Appellant got very good case on merits and grave prejudice will be caused if the delay of 64 days is not condoned. Thus, appellant prayed for condoning the delay of 64 days in filing the appeal. 03.00

Respondent no. 1 filed reply at Exh. 11 and submitted that the certificate dated 30.12.2016 states that appellant was suffering from jaundice and was advised rest from 14.10.2016 to 14.11.2016. The certificate does not mention when he was examined and was admitted to the hospital. Having received the copy on 14.10.2016, he ought to have filed appeal at the earliest within limitation. The impugned order seeking condonation of delay before Recovery Officer was itself much belated. Sale was struck long back in February 2008 and Exh. 71 came to be filed on 23.05.2015.

dtg/- Day to day delay has not been explained. So considering these aspects, the appellant is not entitled for any relief of condoning the delay in the instant matter and the application deserves to be dismissed with costs. 04.00

Respondent no. 2 filed reply at Exh. 16 and submitted that appellant has produced the certificate of Tawde Hospital and perusal of the same would reveal that the appellant was declared fit on 11.11.2016. However, i n the application for condonation of delay, no reason is mentioned as to why the appellant failed to file the appeal in the month of November and December, 2017. The reason of demonetization is nothing but absurdity. The appellant is himself guilty of causing delay in filing the appeal. The delay in filing the appeal is inordinate. Person receiving the copy on 14.10.2016, how he can claim that he was suffering from illness from the very same day. It is specifically denied that the appellant was suffering from jaundice in the month of October as is alleged. The certificate is issued on 30.12.2016 and it creates doubt about its genuineness. Respondent no. 2 has purchased the property by paying huge amount and due to illegal tactics adopted by the appellant, he is prevented from enjoying his property. The appellant is not entitled for any relief and the application deserves to be rejected and it be rejected accordingly.

dtg/-

05.00

Heard arguments of the counsel of all contesting parties. 06.00

Now the points for consideration are :-

Whether the delay of 64 days in filing this appeal on the Recovery Officer’s orders dated 06.10.2016 can be condoned?

To what reliefs? 07.00

Point no. 1 :- The undisputed facts in this case are that the Recovery Officer – II, DRT, Nagpur rejected the application to condone the delay of 3327 days in challenging the sale that was confirmed on 16.04.2007. In the Roznama orders dated 06.10.2016, it is mentioned that as per Roznama orders dated 24.01.2007, it is observed that the applicant Shri Sagar i.e. CD no. 3( C) [applicant herein] appeared in person on that date. Further on 05.12.2006 and 13.08.2007 vakalatnama duly signed by the applicant – Sagar is filed on record. Recovery Officer categorically observed that these aspects show that the applicant is very well aware of the sale proceedings. Recovery Officer – II categorically mentioned in his orders dated 06.10.2016 that earlier in the matter of confirmation of sale, application for condonation of delay was moved by the certificate debtor nos. 1, 2, 3D, which was rejected vide order dated 26.09.2007 which was dtg/- not appealed against and thus reached finality. So, two delay condoation applications were preferred before learned Recovery Officer – II and those two applications were duly rejected by the Recovery Officer, out of which application for condonation of delay of days was rejected on 06.10.2016 on which present applicant wants to prefer an appeal. But present applicant could not file the appeal in time and there was delay of 64 days in filing the appeal challenging the order dated 06.10.2016 passed by the learned Recovery Officer – II in RP no. 65/2002. 07.01

Admittedly, Recovery Certificate was issued in O.A. no. 409/2001 on 15.05.2002 and pursuant thereto, sale was held and 2 n d respondent herein became auction purchaser. His advocate contends that present applicant’s objections were rejected in R.P. 65/2002 on 06.10.2016 and that applicant herein received said order’s copy dated 06.10.2016 on 14.10.2006 and applicant ought to have preferred an appeal within the time, but came forward with delay of 64 days on the premise of having Jaundice from 14.10.2016 to 11.11.2016 as per the medical certificate filed by the applicant dated 30.12.2016. R-2’s advocate contends that if really applicant had Jaundice from 14.10.2016, how applicant could have received the copy of orders dated 06.10.2016 on 14.10.2016. That apart, he further contends dtg/- that the medical certificate relied on by the applicant was issued two months after the ailment and it is a bogus certificate. There is force in this contention. Even according to the applicant, he is said to be suffering from Jaundice from 14.10.2016 to 11.11.2016. So, on and after 11.11.2016, the applicant could have filed the appeal, but the present appeal is presented on 09.01.2017 after a delay of 64 days. Applicant is not explaining the reasons for the delay in filing this appeal on 09.01.2017 though his Jaundice ailment was cured on 11.11.2016 and his rest period advised by the doctor ended by 11.11.2016. That apart, when the doctor advised rest from 14.10.2016 to 11.11.2016, the medical certificate could have been prior to 14.10.2016 or atleast on 14.10.2016, but it is not known as to how the medical certificate was issued more than 1½ months after the ailment on 30.12.2016. The doctor who issued said medical certificate had not mentioned in the medical certificate that he mentioned those dates with the help of the data, if any, maintained in his hospital. 07.02

Learned advocate for the 1 st respondent contended that said medical certificate is bogus and even according to it and as per the applicant, there is no mention with regard to the date on which the applicant was discharged. Admittedly, there is no date of discharge dtg/- mentioned in the medical certificate and it is not even mentioned whether the applicant was inpatient or outpatient. It simply says that the applicant was suffering from Jaundice and was advised rest from 14.10.2016 to 11.11.2016. Even according to the applicant’s advocate, applicant was unable to approach this Tribunal for preferring the appeal on the Recovery Officer’s orders dated 06.10.2016. Jaundice is a decease which does not make any person immobile and or communicating with his advocate and to pursue the legal remedies. Jaundice pertains to mal -functioning of the lever and by taking medicines and also avoiding restricted foods, the patient can carry on the activities, particularly preferring an appeal which does not require any physical strain etc. Even after the so-called advice of bed rest i.e. on and from 11.11.2016, the applicant had not preferred this appeal and preferred leisurely on 09 .01.2017. 07.03

As per the rulings of the Hon’ble Supreme Court and other constitutional courts, for condoning the delay under section 5 of the Limitation Act, applicant has to explain day to day delay in filing the appeal. But in the present case, applicant miserably failed to explain day to day delay as is being contended by the learned advocates appearing for respondent nos. 1 and 2. Other contention of the applicant is that due to demonetization, he could not pursue the matter.

dtg/- The demonetization is applicable to the whole country and everybody made their own arrangements to pursue their legal remedies during that time. So, on this ground also the delay cannot be condoned, particularly when the medical certificate relied on by the applicant is not inspiring confidence and having necessary details. 07.04

In view of these reasons, this Tribunal feels that applicant miserably failed to explain day to day delay of 64 days caused in filing this appeal on the orders dated 06.10.2016 passed by the learned Recovery Officer – II of DRT, Nagpur. Admittedly, applicant approached that Recovery Officer twice with delay condonation applications with heavy delay, which were properly dismissed by the learned Recovery Officer. O.A. no. 409/2001 is of the year 2001 and it was decided on 15.05.2002. There should be logical end to the applications within a reasonable time and the parties cann ot be allowed to procrastinate the matter like this. That apart, applicant drafted this appeal in a casual way without mentioning his details like father’s name, age, occupation and address etc in this appeal. These aspects also show that the applicant is pursuing this matter in a casual way and not in a responsible way. The parties are supposed to pursue their legal remedies in a responsible way and not in a casual way like this. As was observed earlier, day to day delay of 64 days dtg/- is not explained properly, this application deserves to be dismissed and is dismissed accordingly. In the result, this M.A. is dismissed. Each party do bear their own costs.

Nagpur

Dt.: 07.05.2019

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