NILESH ISHWAR ASHTARKAR vs SHIKSHAK SAHAKARI BANK LTD on 16 September 2019

J U D G M E N T

(Delivered on this 16t h day of September, 2019)

This is an application for condonation of delay of 70 days in preferring the appeal under section 17 of SARFAESI Act. 02.00

The brief facts of the applicants‟ case are that the present appellant sic was regularly and genuinely paying the dues of the bank, but due to the litigation dtg/- occurred in the property purchased for development of the scheme, the amount could not be paid as the suit before 3 rd Civil Judge, Sr. Dn. Nagpur was initiated vide Spl. Civil Suit No. 291/2015 and as such the default has taken place. The present appellant after the receipt of notice of 13(2) deposited the substantial amount in the loan account which demonstrate that the present appellant is n ot the willful defaulter and accordingly talks were going on between the appellant and respondent. Respondent bank acted contrary and had initiated action of taking symbolic possession of the property and had pasted the notice of possession on the outer wall of the house property. The appellant is having preliminary objection of invoking the provisions of SARFAESI Act by respondent bank as the present respondent bank is a cooperative bank registered under the M.C.S. Act and it is governed by State enactment and therefore respondent bank cannot be construed as a bank within the definition mentioned in section 2 of the definition of bank under SARFAESI Act. The present appellants humbly submit that the delay is not occurred but the office raised the objectio ns regarding delay and as such the present application for condonation of delay is moved to avoid technicality and in fact the action of respondent bank is continuous as respondent bank also initiated the action under section 14

dtg/- wherein the application was filed before District Magistrate and District Magistrate passed the order and the same is also under challenge. Hence the delay, if any occurred, may kindly be condoned in the present facts and circumstances of the case in the interest of justice. 03.00

Respondent bank filed its reply vide Exh. 13 and denied that appellant was regularly and genuinely paying the dues of the bank. Respondent bank gave sufficient and reasonable time to the appellants but the appellants failed to deposit the outstanding amount and thus left with no alternative but to initiate recovery proceedings against the appellants. The bank has not disputed the action under SARFAESI Act against the appellants. It is specifically denied that no delay has occurred and that as only on th e objection raised by the office regarding condonation, the application has been filed for condonation of delay. It is specifically submitted that appellants failed to regularize all the accounts and therefore respondent bank filed an application before District Magistrate on 12.03.2018 for taking physical possession of the property. The matter before District Magistrate has already been disposed of on 16.11.2018 in favour of bank directing them to take the physical possession of the said property. Thus the appellants had full knowledge of the action taken by the respondent bank. If at all the dtg/- appellants were aggrieved by the action of the respondent bank, they ought to have approached this Tribunal well within limitation. The appellants have filed the instant application on 10.12.2018 that is almost after one and half year. The application for condonation of delay ought to have been filed by 7 th March 2018. The appellants are approaching this Tribunal in a very casual manner and have not even properly explained the delay or even mentioned the genuine reasons for the delay and that it seems appellants have approached this Tribunal only with an intention to avoid the execution of action under SARFAESI Act. For all the above reasons, respondent bank sought rejection of this application with heavy costs. 04.00

Heard arguments of both sides. 05.00

Now the points for consideration are :-

Whether day to day delay caused by the applicants in filing the case is properly explained?

To what reliefs? 06.00

Point no. 1 :- The main contentions of the learned advocate for respondent bank is to the effect that applicants filed S.A. in the year 2017 without looking into the aspect of „delay‟ and after 6 months in December 2018 they realized that there was delay and hence the day to day delay from 14.07.2017 to the date of filing this M.A. i.e.

dtg/- 08.12.2017 has to be explained. 14.07.2017 is the date of respondent bank issuing possession notice for taking possession of the secured assets to the applicants herein . Within 45 days from the date of receipt of said possession notice, aggrieved parties i.e. applicants have to challenge the action before Debts Recovery Tribunal as per section 17(1) of SARFAESI Act which reads as follows:- “17(1) Any person (including borrower), aggrieved by any of the measures referred to in sub-section (4) of section 13 taken by the secured creditor or his authorized officer under this Chapter, may make an application alongwith such fee, as may be prescribed to the Debts Recovery Tribunal having jurisdiction in the matter within forty -five days from the date on which such measures had been taken” 06.01 Admittedly, the possession notice was issued on 14.07.2017, that means the applicants are supposed to file S.A. on or before 30 th August 2017. On 08.12.2017, the applicants filed S.A. with M.A. So, in fact delay caused from 30 th August 2017 to 08.12.2017 has to be explained i.e. applicants had delayed in challenging SARFAESI action by 70 days and they are supposed to explain said delay of 70 days for this Tribunal to invoke its jurisdiction under section 5 of the Limitation Act. As per well settled legal preposition s rendered by Hon‟ble Supreme Court, „day to day delay‟ has to dtg/- be explained by the applicants, if they really want relief under section 5 of the Limitation Act. 06.02 In the present case, even according to the applicants, they preferred Spl. Civil Suit No. 291/2015 before Ld. 3rd Civil Judge, Sr. Division, Nagpur and they are pursuing that litigation. When they are pursuing the litigation, they will be certainly knowing the developments of this litigation from time to time personally as well as through their advocate. Even according to the applicants, delay in payment of the loan took place because of said litigation in Spl. Civil Suit no. 291/2015.The outcome of said Spl. Civil Suit is not even mentioned by the applicants. 06.03 That apart, the applicants are contending in their application that respondent bank is a Cooperative Bank registered under Maharashtra Cooperative Societi es Act and it is governed by State enactment and therefore respondent bank cannot be construed as a „bank‟ within the definition as mentioned in section 2 of SARFAESI Act. So, the applicants are well aware of these legal aspects and are even contending that respondent bank would not come within the definition of a „bank‟ under SARFAESI Act. These aspects show that the applicants are well aware of the legal aspects and are experienced with men and matter. If the applicants are sure that the Cooperative Tribunal is having jurisdiction of their dtg/- dispute with the respondent bank, nothing prevented them from approaching Cooperative Tribunal constituted under Maharashtra Cooperative Societies Act. The only conte ntion of the present applicants‟ advocate is to the effect that their previous advocate Shri R K Thakkar who filed this M.A. and S.A. on 08.12.2017 had not taken all the pleas in this case and had not pursued interests of the applicants properly and that they subsequently handed over this matter to the present advocate. 06.04 This Tribunal passed certain „conditional orders‟ in this case and that the applicants herein have not chosen to comply the „conditional orders‟ as per endorsement of the Registrar of this Tribunal made on 22.03.2019. The applicants are simply questioning each and every act of the respondent bank and its capacity as „bank‟ as per definition under SARFAESI Act, but they are not at all paying any amounts inspite of the conditional orders imposed on them. These aspects are probabilising and strengthening the contentions of the respondent bank‟s advocate stating that applicants are trying to gain time by approaching different forums. She further contended that though there is abnormal delay of 70 days, applicants have not chosen to explain the delay much less day to day delay which is an essential under section 5 of the Limitation Act as observed by Hon‟ble Supreme Court in dtg/- number of Rulings in this regard. Though there is delay of 70 days, the applicants averred in the M.A. that “delay is not occurred but the office raised the objections regarding delay and as such present application for condonation of delay is moved to avoid technicality”. In that way, applicants are throwing blame on the scrutiny and registry of this Tribunal also. As the possession notice is dated 14.07.2017, the applicants are entitled to challenge SARFAESI action of the respondent bank within 45 days as per section 17(1) of SARFAESI Act. 13(2) notice is dated 21.04.2017 issued to all the applicants herein. So, when 13(4) notice is dated 14.07.2017, the applicants are supposed to challenge the same in DRT within 45 days under section 17(1) of SARFAESI Act i.e. by 28.08.2017. Admittedly, this M.A. is filed on 08.12.2017 i.e. with the delay of 103 days. So, actual delay is of 103 days in filing this case. The applicants are simply throwing allegations on their previous advocate Shri R K Thakkar stating that he had not taken certain pleas and had not pursued the matter properly and that they changed the advocate. Admittedly, no notice was given to the previous advocate about the alleged deficiency of service. Applicants are also contending in their M.A., that infact „no delay is occurred but this office raised the objections regarding delay and as such present application for condonation of delay is

dtg/- moved to avoid technicality‟. In that way applicants instead of fairly admitting the delay of 103 days and explaining day to day delay, they are simply in an irresponsible way averred in their application that they filed this M.A. for condonation of delay in view of the objections raised by this office. As the applicants were engaged by an advocate, said advocate is supposed to verify the limitation aspect and if the matter could not be filed within the prescribed period of limitat ion and if they want to invoke the provision under section 5 of the Limitation Act, they are supposed to calculate exact days of delay after expiry of the limitation period and they have to specifically request to condone specific days of delay explaining day to day delay. In the prayer clause, applicants have not even mentioned number of days of delay after expiry of the limitation period and they subsequently added with pen writing to condone the delay of ‟70 days‟ which infact is „103 days‟ delay. 06.05 That apart, the applicants have not at all made any averments with regard to explaining day to day delay caused in filing this M.A. In that way, this application and other applications were drafted in a casual way by approaching this Tribunal with unclean hands. The applicants are resorting to „forum shopping‟ by filing Spl. Civil Suit No. 291/15 before 3 rd Civil Judge, Sr. Division, Nagpur and also claiming that the dtg/- dispute is to be adjudicated by Cooperative Tribunal constituted under the Maharashtra Cooperative Societies Act. They are also invoking writ jurisdiction by hiding the facts and by not representing the pendency of other I.As. when the matter is called in this Tribunal during the adjournments. Applicants are not bothered to comply conditional o rder dated 12.02.2019 as per the endorsement of this Tribunal‟s Registrar on 22.03.2019 which is being admitted by both the parties. These aspects clearly show that applicants are not approaching this Tribunal with clean hands. Hence the applicants are not entitled for any equitable relief in the case of this nature. 06.06 As day to day is not at all explained by the applicants, they are not entitled for condonation of delay caused in filing this application before this Tribunal after expiry of limitation period. This Tribunal considered all the documents filed on behalf of both sides with reference to the contentions raised by their learned advocates and finds no merits in this case and that applicants are not entitled for any relief. Thus the application is liable to be dismissed. Hence this point is answered accordingly.

dtg/-

In the result, this M.A. is dismissed with costs of Rs. 10,000/- to the loan account and Rs. 1,000/- to the other side payable within a week.

Interim protections/I.As., if any pending, are deemed to have been vacated/closed.

Nagpur

Dt.: 16.09.2019

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