Mr T S Chockalingam Balaji vs ING VYSYA BANK on 11 May 2022

**ORDER**

A petition IR.752/19 is filed by the applicant to condone the delay of 260 days in filing the appeal against the order passed in IR RP.356 of 2016 passed by the Recovery Officer dt.5.10.2018.

2IR.752/19 & AOR.2/2019

2. As per the case of the applicant that he filed the above appeal before the Tribunal against the order passed in IR RP.356 of 2016 passed by the Recovery Officer and the above order was passed on 5.10.2018 and he will have to file appeal within 30 days from the date of receipt of the order. He further submitted that his counsel is at Chennai and presently the petitioner residing at Surrey, United Kingdom and the local counsel at Visakhapatnam obtained the order and in turn sent to the counsel at Chennai and since the petitioner is also living at United Kingdom inadvertently the appeal could not be filed in time from the date of the order and however from the date of receipt of order as soon as possible in spite of he is out of country he has preferred the appeal and filed before the Tribunal. He submitted that though he is filing the appeal in time from the date of receipt of the order, by way of aboud and caution he is filing this petition to condone the delay in filing the appeal and due to the above reasons from the date of the order there is a delay of 260 days in filing the appeal and unless the delay is condoned he will be put to irreparable loss and hardship and therefore prayed to condone the delay of 260 days in filing the appeal against the order passed in IR RP.356 of 2016 passed by the Recovery Officer dt.5.10.2018.

3IR.752/19 & AOR.2/2019

3. After perusal of the record, I find that Sri B.Nanda Kumar, Recovery Officer-II, DRT, Visakhapatnam has passed order on 5.10.2018 on the petition filed by this petitioner which is claim petition. As per the Recovery Officer order, he is the third party in the above recovery proceedings. After hearing the matter, a detailed order was passed by the Recovery Officer-II.

In this context I would like to refer the section 29 and 30 of RDDB&FI Act, 1993 which ^{take it} is as follows:-

29. Application of certain provisions of Income-tax Act. The provisions of the Second and Third Schedules to the Income-tax Act, 1961 (43 of 1961) and the Income-tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of to the Income-tax:

Provided that any reference under the said provisions and the rules to the "assessee" shall be construed as a reference to the defendant under this Act.

30. Appeal against the order of Recovery Officer.-- (1) Notwithstanding anything contained in section 29, any person aggrieved by an order of the Recovery Officer made under this Act may, within thirty days from the date on which a copy of the order is issued to him, prefer an appeal to the Tribunal.

(2) On receipt of an appeal under sub-section (1), the Tribunal may, after giving an opportunity to the appellant to be heard, and after making such inquiry as it deems fit, confirm, modify or set aside the order made by the Recovery Officer in exercise of his powers under sections 25 to 28 (both inclusive)

30A. Deposit of amount of debt due for filing appeal against orders of the Recovery Officer. -- Where an appeal is preferred against any order of the Recovery Officer, under section 30, by any person from whom the amount of debt is due to a bank or financial institution or consortium of banks or financial institutions, such appeal shall not be entertained by the Tribunal unless such 4IR.752/19 & AOR.2/2019

*person has deposited with the Tribunal fifty percent of the amount of debt due as determined by the Tribunal.*

1. 4. In this case, the petitioner along with this petition has filed an Appeal AOR.2/2019 on 25.7.2019 after delay of 260 days, which is time barred. According to section 5 of Limitation Act, 1963 *'any appeal or application may be accepted even after the limitation period for the same is over, if the appellant/applicant assures the court that he had a sufficient cause for not being able to file the appeal/application during the limitation period'*. Sufficient cause means which is beyond control of the party in invoking the section 5 of Limitation Act.

2. 5. In the present case, this petitioner has filed the claim petition before the Recovery Officer and after hearing dismissal of the claim petition and the said order was in the knowledge of the counsel engaged and also his counsel who is at Chennai. As per the petition, the petitioner who is residing at UK, it is the duty of the petitioner to take the knowledge and status of the case from time to time about the progress of the case from his counsel or court. It is negligent on the part of the applicant/petitioner and the cause mentioned in this petition is not sufficient in my view to condone the delay of 260 days.

5IR.752/19 & AOR.2/2019

On the basis of my above discussion, I dismiss this petition filed under section 5 of Limitation Act by the petitioner and also AOR.2/2019 but without costs.

In the result, the IR.752/19 and AOR.2/2019 is dismissed without costs.

[Typed to the dictation corrected and pronounced by me in the open court on this 11^th May, 2022]

*[Handwritten signature and date: 11.05.22]*

PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM