Debts Recovery Tribunals and Appellate Tribunals
Konda Shivaji Kumar vs HDFC BANK on 26 March 2019
**IN THE DEBTS RECOVERY TRIBUNAL
VISAKHAPATNAM**
Present :- Sri Doppala Vasudeva Rao, Presiding Officer Dated the 26<sup>th</sup> March, 2019
MA.187 of 2018
in
SA(UN)
Between
Konda Shivaji Kumar, No.54-3-16/2, Addepalli Colony, Rajahmundry and others
.....Petitioners
And
HDFC Bank Limited, Seethammadhara,
Visakhapatnam
.....Respondents
Ld.Counsel for the petitioner : Sri BVSS Ramesh Kumar Ld.Counsel for the respondent : Sri A.Srinivas
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ORDER
The petition MA.187 of 2018 is filed by petitioner under section 17 of SARFAESI Act read with section 5 of Limitation Act to condone the delay of 40 days in filing the SA, in the interest of justice.
2. According to the averments made in the petition that after availing loan he cleared the loan installments to the bank regularly but recently he incurred heavy loss in his business and not in a position to pay the loan installments; that he is law abiding citizen and he is willing to clear the loan amount to the bank as early as possible and seeking time for clear the loan amount as early as possible and there is a delay in filing the SA before the Tribunal which is neither intentional nor deliberate but for the reasons stated above hence prayed to condone the delay.
3. Counter filed by the respondent denying the averments made in the petition and further stated that the petition is not maintainable; that the petitioner failed to explain the reasons for the delay in filing the SA and therefore prayed to dismiss the petition with costs.
4 The point for consideration is whether the petitioner is entitled for condonation of delay of 40 days in filing the SA as prayed for or not? Heard both sides. The Ld. Counsel for the petitioner submitted that the there is a delay is only 40 days due to the reasons mentioned in the petition and that the delay was not intentional and not due to any negligence and there is no willful delay in the matter and that this Tribunal has every right to condone the delay. On the other hand, the Ld. Counsel for the Respondent argued that the petition is not maintainable under law as such argued to dismiss the petition.
5. Heard the Ld.Counsel for the petitioner and respondent. Perused the petition and counter 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 40 days has been occurred in filing the SA as they are seeking time to clear the loan amount as early as possible, in the interest of justice, it would be just and necessary to give an opportunity to the petitioner to contest their case, the delay can be condoned. Therefore, in view of the law laid down by Hon'ble Supreme Court and Hon'ble High
4
MA.187/18 in SA(UN)
Court of Andhra Pradesh stated supra, I am of the considered opinion to allow the petition by condoning the delay of 40 days in filing the SA in the interest of justice.
In the result, MA.187 of 2018 is allowed without costs, and the delay of 73 days in filing the SA is hereby condoned. The Registry is directed to number the SA if otherwise is in order.
[Typed to the dictation, corrected and pronounced by me in the open court on this 26<sup>th</sup> March, 2019]
PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM