Sri Pydi Naidu vs IDBI BANK on 12 June 2019

ORDER

The petition MA.182 of 2018 is filed by petitioner under section 17 of SARFAESI Act read with section 5 of Limitation Act to condone the delay of 48 days in filing the SA, in the interest of justice.

2. According to the averments made in the petition that the petitioners had come across the advertisement of respondent bank about the sale of the properties and participated in the auction; that the petitioners were aggrieved of the forfeiture of the amount by the respondent bank; that the applicants were never informed of the alleged terms and conditions of the auction nor were furnished with a copy of such rules and regulations; that the applicants have no opportunity to make such enquiries before participating in the auction; that aggrieved of the forfeiture of the amount the petitioners preferred OS.412/2013 before the District and Sessions Judge, Visakhapatnam and decreed in favor of the petitioner and the defendant therein preferred Appeal Suit before the Hon'ble High Court of AP wherein later he was advised to file the present petition before the Tribunal and to seek condonation of delay of 48 days in preferring the SA. It has been stated that unless the delay is condoned and the appeal is registered no justice would be done to them and precious right of appeal would be defeated and therefore prayed to condone the delay of 48 days in preferring the appeal.

3. Counter filed on behalf of respondent bank denying the averments made in the petition and further stated that the required information for the registration of sale deed like survey number, extent, boundaries were all ambiguous and need clarification does not arise at all since the applicants they themselves verified the documents in the bank premises before auction and also visited the site. It has been stated that the applicant failed to adhere to the terms of auction and therefore the bank has rightly forfeited the amount and there are no latches on the part of the bank. It has been further stated that the applicants have also failed to explain day to day delay in filing this petition. Since the petitioners already filed civil suit and the same was dismissed/set aside the lower court by the High Court, it is well settled law that after establishment of DRT under the provisions of SARFAESI Act and RDBD&FI Act the civil court has lost its jurisdiction even then the petitioner filed civil suit and delayed the process of the respondent bank in selling the property to third parties and that there is no ground to allow the petition hence prayed to dismiss the same with costs.

4 The point for consideration is whether the petitioner is entitled for condonation of delay of 48 days in filing the SA as prayed for or not? Heard. The Ld. Counsel for the petitioner submitted that there is a delay of only 48 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 to dismiss the petition as the petitioner did not mention any cogent reasons in the petition.

5. Heard. As per the 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 petitioner stated that the delay of only 48 days has been occurred in filing the SA due to the reasons stated in the petition and therefore, in the interest of justice, it would be just and necessary to give an opportunity to the petitioner to contest his 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 48 days in filing the SA in the interest of justice.

In the result, MA.182 of 2018 is allowed without costs, and the delay of 48 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 12^th June, 2019]

12/6/19 PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM