SANDEEP HARISH KEWALANI vs SHRIRAM CITY UNION FINANCE LIMITED on 3 June 2019

JUDGEMENT

(Delivered on 3 r d day of June, 2019)

CLAIM: This is an application filed by the applicants to condone the delay of 17 days in filing the S.A. 02.00 Application averments:- Applicants have challenged the action and measures taken by the respondent U/s13(4) of the SARFAESI Act, 2002 whereby symbolic possession of the secured assets has been taken by the respondent bank in pursuance of notice dated 24.3.2018, on which date symbolic possession of the se cured assets was taken. This action of the respondent is under challenge before this Tribunal by filing the S.A., which has to be filed within 45 days i.e. on or before 8.5.2018. 02.01 The grand mother of applicant nos.1 and 4 and mother of 5 th applicant was not keeping well for the last 3 months due to various ailments and old age. Her condition was deteriorating with every passing day and no symptoms of recovery were found. Finally, the doctors advised to take her home as despite best of their efforts, she did not show any signs of recovery. 02.02 On and around 3.5.2018, the said old lady was serious and was admitted in a hopsital in Wardha. Applicant nos.1 and 4 were required to rush to Wardha to take care of their ailing grand mother. As a result, though the S.A. was gvp ready, applicant nos.1 and 4 were not available to sign thereon. As a result, the S.A. could not be filed before this Tribunal on or before the last date i.e. 8.5.2018. Applicants also prepared DD of the court fee of the SA on 19.4.201 8 and that shows the intentions of the applicants that they were ready to file the S.A. within the prescribed period. 02.03 On 21.5.2018, the grand mother of the applicant nos.1 and 4 died. Her last rites were performed at Wardha on 21.5.2018 and thereafter ‘pugri rasam’ was performed on 23.5.2018. After completion of ‘pugri rasam’, applicant no.1 and 4 returned back to Nagpur on 24.5.2018 and contacted their advocate on 24.5.2018. Since the delay was caused in filing the S.A., the advocate drafted this application U/s 5 of the Limitation Act for condonation of delay in filing the S.A. to be filed before this Tribunal alongwith the S.A. Accordingly, the advocate completed the necessary formalities and filed the same on 25.5.2018. However, in the process 17 days delay occurred in filing the SA, which was not deliberate or intentional, however, it was unavoidable. 03.00 Respondent’s reply averments:- The applicants filed this application in haste and negligent manner just to disturb or delay the legal acti on for the recovery of public money and on this sole count alone, this application is not gvp maintainable and should be dismissed by imposing heavy costs. 03.01 Applicants have not come before this Tribunal with clean hands and attempting to falsify the legitimate claim of the respondent by submitting distorted facts and pleadings. Applicants had sufficient knowledge of the proceedings initiated by the respondent under SARFAESI Act. Applicants admitted symbolic possession of secured assets on 24.3.2018 itself. This very fact shows that applicants had knowledge of the SARFAESI proceedings and did not approach this Tribunal though sufficient time is available, due to malafide intentions. As such, this application deserves to be dismissed. 03.02 Applicants enclosed the possession notice dated 24.3.2018 as Exh.D with the application under reply. How did the applicants carry their business during the sickness of the old lady. Applicants were well aware of the possession notice dated 24.3.2018 and applicants have referred the same during their talks and discussion but deliberately delayed for approaching this Tribunal. The said acts of deliberate delay of the applicants itself proves that they have not come with clean hands and were having sufficient knowledge about the entire proceedings, however, they chose not to agitate the same within the prescribed time and thus cannot come before this Tribunal at this stage with the gvp plea of no knowledge so as to defeat the bonafide process of the respondent to recover its dues. Respondent submits that applicants have no case and the present application for condonation of delay is devoid of merits and same needs to be dismissed. 04.00 Arguments of both sides heard. 05.00 Now, the points for determination are:-

(i) Whether the delay can be condoned?

(ii) To what reliefs. 06.00 The undisputed facts in this case are that the symbolic possession of the secured assets of the applicants was taken on 24.3.2018 by the respondent – creditor. The applicants want to challenge the SARF AESI action initiated by the respondent vide 13(2) notice dated 8.1.2018. Applicants want to challenge the symbolic possession that was admittedly taken on 24.3.2018 and the last date for filing the S.A. is 8.5.2018. Admittedly, the S.A. could not be filed on or before 8.5.2018. Instead, this M.A. is filed on 25.5.2018 i.e. after the delay of 17 days. Applicants are requesting this 17 days delay be condoned and to register their S.A. The brief grounds that are being stated by the applicants are that the grand mother of applicant nos.1 and 4 and the mother of 5 th applicant was suffering with certain gvp ailments and also due to her old age and in that connection said applicants were attending to her ailments. According to the applicants, on 3.5.2018, the said old lady was admitted in a hospital at Wardha and that said applicants rushed to Wardha from Nagpur to take care of her. While undergoing treatment, said old lady said to have expired on 21.5.2018 and that the applicants were forced to go to Wardha and performed her last rites in Wardha. “Pugri rasam” i.e. post death programme was performed on 23.5.2018 and thereafter the applicants returned to Nagpur on 24.5.2018 and filed S.A. on 25.5.2018 alongwith this application for condoning the delay of 17 days. On these grounds applicants are requesting this Tribunal to condone the delay. 06.01 Learned Advocate for the respondent financial institution contended that U/s.5 of the Limitation Act, each day’s delay has to be explained and that the applicants failed to file the death certificate of the said old lady who expired on 21.5.2018 in Wardha and also about her alleged hospitalization on or around 3.5.2018 in a hospital at Wardha. Learned Advocate for the applicants contended that the applicants in fact wanted to file the S.A. within time and they obtained the D.D. for paying the court fee s on 19.4.2018 itself, which demonstrates their readiness to file the S.A. within time. He also submitted that the conditional order dated 13.11.2018 passed by this Tribunal was also gvp complied by the applicants. Both parties are not disputi ng the obtaining of DD of Rs. 95,500/- bearing No.649224 dated 19.4.2018 issued by Laxmi Vilas Bank, Nagpur for filing the S.A. which was duly endorsed by the Ld. Registrar of this Tribunal. This aspect is revealing applicants’ preparation for filing the S.A. by taking necessary DD on 19.4.2019 towards payment of the court fees for the S.A. So, these aspects show that the applicants are making preparation for filing the S.A. within time but due to health ailments of the grand mother of applicant nos.1 and 4 and mother of 5 th applicant, they had been to Wardha where said lady was admitted in a hospital and succumbed to her ailments on 21.5.2018. As five applicants have to sign the S.A. an d as some of them had been to Wardha in connection with the ailments and hospitalization of the old lady, they could not sign the S.A. within time and the said old lady died on 21.5.2018 and as some post death formalities took place, applicants could able to return to Nagpur on 24.5.2018 and that this S.A. is filed on the next date i.e. 25.5.2018. Though, the applicants have not filed the hospital admission certificate and death certificate of said old lady, the factum of taking D.D. on 19.4.2018 is showing their readiness and preparedness to file the S.A. within time but could not file in view of the health ailments and subsequent death of old lady in their family, who was hospitalized in Wardha and gvp thereafter died on 21.5.2018. So, this Tribunal feels th at the applicants have explained the day to day delay properly and in order to give them an opportunity to challenge the SARFAESI action, this Tribunal feels it just and proper to condone the delay of 17 days in filing the S.A., however by imposing costs as were demanded by the respondent in their reply. 06.02 According to the respondent, there are dues of Rs.3.5 Crores as on 20.05.2016 and that the applicants could able to pay Rs.22 lakhs only as per this Tribunal’s conditional order dated 13.11.2018 and t he remaining balance is due. That goes to show that around Rs.3.28 crores is due as on 20.5.2016. Taking into consideration of the due amount, this Tribunal feels it just and proper to direct the applicants to deposit not less than Rs.17 lakhs in their loan account within a maximum period of one month from today for condonation of delay. If the applicant s want the S.A. to be numbered early, they are at liberty to deposit said Rs.17 lakhs at the earliest. By imposing this condition, this Tribunal feels that it will meet the ends of justice. Hence, this point is answered accordingly in favour of the applicants and against the respondent. Point no.(ii) Hence, I pass the following order:-

gvp

ORDER

(i) M.A. is allowed subject to applicants’ depositing not less than Rs.17 lakhs to the loan account within one month from today.

(ii) If complied, register the S.A., if otherwise in order.

(iii) Each party do bear their own costs.

Nagpur

Dt. 03.06.2019 (Chikkam Vijay Mohan) Presiding Officer Debts Recovery Tribunal, Nagpur