PALM KERNAL INDIA PVT LTD vs INDIAN OVERSEAS BANK on 16 December 2022

JUDGMENT

(Delivered on 16th December, 2022)

1. This application emerges from order dated 29th September, 2022 dismissing the Securitisation Application No.207/2018 for want of prosecution.

2. The averments in the application can be summarised as under:

The applicants have filed SA No.207/2018 challenging measures adopted by opponent bank under the provisions of The Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short `SARFAESI Act’). In the said Securitisation Application the applicants had moved IA Nos.395/2021 and IA No.396/2021 against the opponent bank and this

Tribunal had passed Status quo order on 30th October, 2021. The opponent bank challenged that order by filing Misc. Appeal No.41/2022 before Hon’ble DRAT, Mumbai which disposed of the Appeal with direction to this Tribunal to decide the SA No.207/2018 within a period of four weeks from the date of receipt of the order. Therefore, SA No.207/2018 was kept for final hearing on 19th September, 2022. On that date, the applicants sought adjournment on account of absence of their Advocate. Therefore, it was posted on 28th September, 2022. On that date, the applicants again sought adjournment by filing adjournment application which was rejected and on the same date this Tribunal dismissed the Securitisation Application for want of prosecution. Therefore, the applicants have moved the present application for restoration of SA No.207/2018.

3. It is contended that on 28th September, 2022 the applicants were not aware about real reason of absence of their Advocate but when they approached Advocate for intimating order of dismissal of Securitisation Application, they, for first time, came to know that their Advocate Mr. Suresh P. Pandav was suffering from serious ailment and therefore, he could not remain present before this Tribunal and other Tribunals. They came to know from the Advocate that he was not willing to disclose his ailment and was under expectation that Securitisation Application will not be dismissed. On these facts and grounds the applicants have claimed relief of restoration of Securitisation Application by setting aside order of dismissal passed on 28th September, 2022 and also sought relief of Status Quo Order.

4. The defendant Nos.1 and 2 by filing Reply (Exhibit-11) resisted the application. It is contended that impugned order challenged in this Miscellaneous Application by the applicants is legal and proper and there is no error apparent on the face of record. Further, Doctrine of Merger would apply to the impugned order dated 28th September, 2022 passed by this Court. The grounds mentioned in the application by applicants are not sufficient. Therefore, application may be rejected.

5. The opponent No.3, auction purchaser by filing Reply (Exhibit-13) resisted the application. It is contended that applicants sought numerous adjournments and contention of the applicants that they had no knowledge about illness of Advocate is very strange. The said stand taken by the applicants is fraudulent one. The applicants have not come to this Court with clean hands.

6. It is further contended that the applicants cannot take undue advantage of illness of their Advocate. The facts mentioned in the application are false and concocted. It is further contended that the applicants have appointed new Advocate in this proceedings. So it was possible for the applicants to appoint new Advocate when their earlier Advocate was found sick. However, the applicants have not taken that step earlier and now the applicants on the ground of illness of their Advocate are trying to obtain sympathy which they do not deserve. Therefore, application may be rejected.

7. The following points arise for my determination and I record my findings as under: Points:

Whether grounds mentioned in this application for restoration of SA No.207/2018 are sufficient?

What order?

Findings:

1. Point No.1 – In the affirmative.

[kaur] (MA No.60/2022) Page 6 of 8

2. Point No.2 – As per final order.

Reasons

8. I have heard arguments of Advocates for all the parties. Perused the Written Notes of Arguments of applicants (Exhibit-17) and opponent Nos.1 and 2 bank (Exhibit-14). Perused the record and documents produced on behalf of the applicants along with List (Exhibit-15 and 16).

9. The applicants have produced Medical Certificate of their Advocate along with List (Exhibit-16). The Medical Certificate dated 22nd September, 2022 issued by medical practitioner candidly shows that Advocate Mr. Suresh P. Pandav (Advocate of the applicants) had undergone full mouth Dental Implant Surgery for both jaws and had been advised not to speak and take strict bed rest to avoid post- surgical bleeding and infection. The patient has also severe fibrosis which can further complicate the healing if rest is avoided. From this Medical Certificate it appears that Advocate for the applicants could not be able to speak due to dental implant surgery and therefore, could not attend the Court on the dates fixed for hearing of SA No.207/2018. That apart, Advocate Mr. Suresh P. Pandav of the applicants has filed Affidavit produced along with List

(Exhibit-15) which contends his illness and inability to attend the Court for hearing.

10. It is principle of law that client should not suffer for non- attendance of his Advocate on any pretext. Therefore, in my opinion the grounds mentioned in the application for restoration of Securitisation Application are adequate.

11. The applicants have challenged measures taken by opponent bank under the provisions of SARFAESI Act. No doubt, SA No.207/2018 has been dismissed for want of prosecution, however if the said Securitisation Application is not restored, the doors of justice are likely to close permanently for the applicants. Per contra, if the Securitisation Application is restored for hearing, no prejudice would be caused to the opponents as they would get an opportunity to contest the same on merits.

12. In view of these observations, I hold that the application deserves to be allowed but subject to cost. Hence by answering these points accordingly, I pass the following order:

ORDER

(A) The application is allowed. (B) SA No.207/2018 be restored by setting aside

Order dated 28th September, 2022 of dismissal of the same subject to payment of cost of Rs.20,000/- (Rupees Twenty Thousand only) to be paid to Prime Minister’s Relief Fund within ten days from today. (C) The payment of cost is pre-condition for restoration of SA No.207/2018. (D) Status Quo Order in respect of suit property be extended till restoration of SA No.207/2018.

Pronounced in open Court.

Place : Pune Date: 16.12.2022

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