Mr Kumar Tarachand Karamchandani vs Housing & Urban Dev. on 2 July 2022

ORDER

(Delivered on 2nd July, 2022)

1. This is an application filed by the applicants for condonation of delay of 190 days in filing application for restoration of Appeal No.3/2015.

2. It is contended in the application that the applicants had filed Appeal No.3/2015 challenging the order of Recovery Officer passed below Exhibit-534 and 535 in Recovery Proceeding No.49/2008. Further, the said Appeal was dismissed for default by order dated 6th September, 2019. This fact came to know to the applicants on 24th April, 2022 when Auction Notice published in newspaper was read about sale of disputed property. Therefore, the applicants made inquiry with their appointed Advocate Mr. Inamdar who used to tell them that the Appeal was still pending for hearing.

3. Therefore, the applicants appointed new Advocate and obtained certified copies of impugned order on 24th May, 2022 and filed this application on 30th May, 2022. The earlier Advocate did not disclose true status of Appeal to the applicants and therefore, they were not having knowledge of dismissal of Appeal. In such circumstances, there is delay of 190 days in filing the application for restoration of Appeal. Therefore, they prayed for the reliefs as claimed.

4. The opponent bank by filing reply (Exhibit-6) resisted the application. It is contended that computation of period of delay is not correct. Though, there is delay of 967 days, the applicants have calculated it as 190 days. The order of Hon’ble Supreme Court in respect of extension of limitation period from 15th March, 2020 to 28th February, 2022 and thereafter, extension of said period for 90 days is not applicable to the present case. Since this application is filed with malafide intentions to stall the recovery of dues of opponent No.1 under Recovery Proceeding No.49/2008, it may be dismissed.

5. Heard arguments of both the parties.

6. The learned Advocates appearing for both the parties reiterated facts mentioned in the application. The learned Advocate appearing for the applicants relied on the following Authorities:

Bhagwan s/o Ganpatrao Godsay Vs. Kachrulal s/o Bastimal Samdariya [1987 SCC Online BOM 32]

Rafiq and Another Vs. Munshilal and another [(1981) 2 SCC 788]

Goswami Krishna Murarilal Sharma Vs. Dhan

[Kaur] (MA No.32/2022) Page 5 of 7

Prakash and Others [(1981) 4 SCC 574]

Basawaraj and Anr. Vs. The SPL. Land Acquisition Officer [AIR 2014 Supreme Court 746]

SUO MOTO Writ Petition (C) No.3 of 2020

7. Perused the record and Annexures to the application. It is to be noted that as per order of Hon’ble Supreme Court passed in SNW(C) No.3 of 2020 the period of limitation was extended from 15th March, 2020 to 14th March, 2021 and which thereafter extended till 3rd October, 2021 by order passed in M.A. No.665 of 2021. Thus, while calculating period of delay in filing this application this period from 15th March, 2020 to 3rd October, 2021 has to be excluded.

8. The Appeal was dismissed for want of prosecution on 6th September, 2019. The period of filing application for restoration is 30 days which came to end on 6th October, 2019. As per order of Hon’ble Supreme Court period of extension of limitation started on 15th March, 2020 and it ended on 3rd October, 2021. The present application is filed on 30th May, 2022. Therefore, calculation of delay of 190 days made by the applicants appears to be correct.

9. According to the applicants, their earlier Advocate did not disclose status of Appeal and its dismissal for want of prosecution. Thus, it appears that Advocate has committed mistake in respect of non-communication of status of Appeal to the applicants. It is settled law that the client should not suffer for the mistake of his Advocate. The Authorities cited supra supports the case of the applicants.

10. While dealing with delay condonation application pragmatic and liberal view has to be taken by the Court. If this application is allowed, the opponent will get a chance to contest the application for restoration of Appeal and thus, no prejudice would be caused to it. Therefore, the application deserves to be allowed subject to payment of substantial costs as recovery proceeding before Recovery Office is of 2008 from which an inference can be drawn that litigation is very old.

11. Hence, I pass the following order:

ORDER

(A) Miscellaneous Application No.32/2022 is allowed.

(B) Delay in filing application for restoration of Appeal No.3/2015 is hereby condoned subject to costs of Rs.50,000/- (Rupees Fifty Thousand only) to be paid to Prime Minister’s National Relief Fund within a week. (C) After payment of costs, Appeal No.3/2015 be restored.

Pronounced in open Court

Place : Pune Date : 02.07.2022

Sd/- (Dilip G Murumkar) Presiding Officer Debts Recovery Tribunal, Pune