Debts Recovery Tribunals and Appellate Tribunals
SRI KALLAM PERI REDDY vs STATE BANK OF INDIA on 8 January 2020
**IN THE DEBTS RECOVERY TRIBUNAL
VISAKHAPATNAM**
Present :- Sri Doppala Vasudeva Rao, Presiding Officer Dated the 08<sup>th</sup> January, 2020
MA.51 of 2019
in
SA(UN)
Between
Sri Kallam Peri Reddy
...Petitioners/ Applicants
And
The Authorised Officer, State Bank of India, SARB, Visakhapatnam and 2 others .....Respondents Ld.Counsel for the petitioners : Sri D.N. Murthy Ld.Counsel for the R1 and R2 : Sri CJR,
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ORDER
The petition MA.51 of 2019 is filed by petitioner under section 17 of SARFAESI Act read with section 5 of Limitation Act to condone the delay of 103 days in filing the appeal, in the interest of justice.
2. According to the averments made in the petition that petitioner filed affidavit that petitioner filed present affidavit that principal debtor obtained loan from the 2<sup>nd</sup> Respondent and petitioner stood as guarantor and mortgaged the schedule mentioned property and further submitted that the loan account of the principle borrower slipped into NPA as such Respondent Bank initiated SARFAESI proceedings and conducted auction on 25.10.2018 and sold the schedule mentioned property to the 3<sup>rd</sup> Respondent and further submitted that principle 2MA 51 of 2019 SA (Un)
borrower received prevailed market value is at Rs. 10,00,000/- but the property was sold at Rs. 3,78,50,000/- and due to lack of information regarding the sale on 25.10.2018. 1<sup>st</sup> Respondent did not file present appeal within time as such there is a delay of 103 days in filing the present SA and submitted that the delay is neither wilful nor wanton and therefore prayed to condone the delay of 103 days.
3. Respondent filed counter denying the averments, Respondent Bank issued 8(6) notice giving 30 days time and the same was acknowledged and also E-auction was served on applicant for conducting auction on 18.09.2018 and resale notice was issued on 19.09.2018 and later re-sale auction notice dt. 10.10.2018 was also issued for conduction auction on 25.10.2018 and sold the property. Subsequently OA was compromised and Respondent Bank filed FS memo adn loan account was closed on 02.04.2019. OA was disposed off on 03.06.2019. Respondent Bank submitted that applicant has cooked up the story of no information regarding the sale of the property on 25.10.2019 and therefore prayed to dismiss the petition.
4. The point for consideration is whether the petitioner is entitled for condonation of delay of 103 days in filing the present SA as prayed for or not? Heard both sides. The Ld. Counsel for the Applicant submitted that the delay of 103 days is to be condoned as there is no willful delay in this matter by the petitioner. The Ld. Counsel of the Respondent Bank argued to dismiss this petition.
5. Heard the Ld. Counsel for the petitioner and respondent bank. Perused the petition averments. However, as per the recent decision of Hon'ble High Court in WP.No.4941 of 2017 dt.29.11.2017 wherein their
Lordship at para 2 of the order 'referring the law laid down by the Hon'ble Supreme Court of India in the matter of BALESHWAR DAYAL JAISWAL Vs. BANK OF INDIA & OTHERS DATED 5-8-2015 an application for condonation of delay in filing a Securitization Application under section 17 of the SARFAESI Act can be entertained by the Tribunal, by virtue of sub-sections 1 and 7 of section 17 of the SARFAESI Act read with Section 24 of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993. In that view of the matter, the Tribunal had power to condone the delay in filing of the said Securitization application, if it found valid grounds to do so'.
6. In view of the above said observation of the Hon'ble High Court of Andhra Pradesh, the DRT has got power to condone the delay of the appeals filing under Section 17 of SARFAESI Act and if Section 5 of the Limitation Act 1963 would made inapplicable to the application under Section 17(1) of the Act, it would virtually defeat valuable right of redemption available to the mortgagor. However, application of Section 5 of the Act 1963 to the proceedings under Section 17(1) of the Act 2002 would neither defeat rights of secured creditor nor cause irreparable hardship to the secured creditor. On the other hand, on perusal of the petition averments, the petitioners stated that the delay of only 103 days has been occurred in filing the SA due to Respondent Bank not furnished the details of the auction/auction purchaser and therefore, in the interest of justice, it would be just and necessary to give an opportunity to the petitioner to contest case, the delay can be condoned. Therefore, in view of the law laid down by Hon'ble Supreme Court and Hon'ble High Court of Andhra Pradesh stated supra, I am of the considered opinion to allow the petition by condoning the delay of 103 days in filing the SA in the interest of justice.
Respondent bank filed documents showing that sale was conducted and property was sold and in OA 107/19 FS is recorded. However applicant filed this MA and condone delay of 103 days challenging the SARFAESI proceedings issued by the Respondent Bank. Merits of documents filed by the Respondent bank will be decided in main SA. For this MA these documents are not necessary.
In the result, MA.51 of 2019 is allowed without costs, and the delay of 103 days in filing the SA is hereby condoned. The Registry is directed to number the SA if otherwise is in order.
Each party do bear their costs.
[Typed to the dictation, corrected and pronounced by me in the open court on this 08<sup>th</sup> January, 2019]
PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM