Smt Mopuru Manemma vs AADHAAR HOUSING FINANCE LIMITED on 27 May 2019

**ORDER**

The petition MA.73 of 2018 is filed by petitioner under section 17 of SARFAESI Act read with section 5 of Limitation Act to condone the delay of 45 days in presenting the SA, in the interest of justice.

1. 2. According to the averments made in the petition that the petitioner filed the above SA challenging the measures initiated by respondent bank; that after issuance of the possession notice he approached the respondent and disputed her liability in view of the insurance claim from R3; that R2 informed him that there are making correspondence with R3 and further submitted that soon they would get the insurance claim amount from R3; that in view of said assurance from R2, they could not file the SA within time i.e., 29.4.2018; that they have a good ground and her claim has to be adjudicated and as such she is filing this application to condone the delay of 45 days to file the SA and that the delay is neither willful nor deliberate hence prayed to condone the delay of 45 days in filing the present SA.

3. Counter filed on behalf of respondent bank denying the averments made in the petition and further stated that the petition itself is malafide in nature, devoid of merits and is liable to be dismissed and that the petition is not maintainable either on facts or in law. It has been stated that the law never protects the person who failed to act diligent or bonafide. It has been stated that the affidavit has not specified any sufficient cause for not representing the case within time as such the same is not maintainable hence prayed to dismiss the petition with costs.

3 The point for consideration is whether the petitioner is entitled for condonation of delay of 45 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 45 days due to the reasons mentioned in the petition and that the delay was not A handwritten signature in dark ink, appearing to be a stylized script, possibly starting with a capital letter 'D' or 'S', followed by several loops and a long horizontal stroke extending to the right.

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.

4. 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'.

5. 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 45 days has been occurred in filing the SA due to the reasons stated in the petition and however, in the interest of justice, it would be just and necessary to give an opportunity to the petitioner to contest her 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 45 days in filing the SA in the interest of justice.

In the result, MA.73 of 2018 is allowed without costs, and the delay of 45 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 27^th May, 2019]

PRESIDING OFFICER DEBTS RECOVERY TRIBUNAL VISAKHAPATNAM