K RAJARAJAN vs INDIAN OVERSEAS BANK on 29 May 2024

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By this final order the review petition and the application for condoning the delay in filing the review are being disposed of together.

1.0 Applicant seeks review of the order dated 21.12.2022 in SA No.334/2022 disposed by this Tribunal vide order dated 21.12.2023. This is accompanied by MA 4/2023 seeking condoning of the delay of five days. The provision invoked for condoning the delay is Section 5A of the RDB Act read with Section 5 of the Limitation Act.

1.1 Review Petition is filed under Section 17(7) of the SARFAESI Act read with Section 22(2)(e) of RDB Act. Section 22(2)(e) provides for review and Section 17(7) empowers the DRT to dispose of the applications under the RDB Act.

2.0 It is submitted that in SA No.334/2022, the Applicant had filed three IAs one for stay, the second one for a direction to the bank to produce the valuation and the third application for appointing a Government approved and IBBI certified valuer to obtain fresh valuation. Applicant contends that he was given to understand that when the matter was argued on 29.11.2022, that the matter was reserved for orders only on the IAs and not on the SA. But when the orders were pronounced, SA itself was disposed of to his surprise. Later the Applicant filed an IA for recalling the order and the said IA was disposed of holding that the Tribunal had become functous officio and hence the present review.

2.1 The disposal of the main SA is an error apparent on the face of the record and therefore it is prayed that the final order in SA 334/2022 be reviewed and an opportunity to hear on the merits be given again.

2.2 Upon notice to the contesting Respondents all appeared through their counsel did not file their counter, but argued the matter. It is also significant herein that by an order dated 18.05.2023, this Tribunal noted that the matter will be heard on IA as well as on merits, and was argued on the IA for condoning the delay and also on merits, by the Ld. Counsel for the Applicant and the 1st Respondent only.

2.3 The Ld. Counsel for the Review Applicant submits that the Applicant has got a good case on merits for review and in the SA it was pleaded that when the property was put to auction for almost six times, the latest valuation report was never obtained and the Respondent financial institution has not given any reasons for the depreciation in the value. Therefore, the findings in SA 334/2022 is liable to be reviewed.

2.4 On the other hand, the Ld. Counsel for the contesting financial institution relied on the ruling of the Hon'ble Supreme Court in Standard Chartered Bank Vs. MSTC Limited 2020(13)SCC 618 in which it was held that:- “21. The peremptory language of Rule 5A would also make it clear that beyond 30 days there is no power to condone delay. We may also note that Rule 5A was added in 1997 with a longer period within which to file a review petition, namely, 60 days. This period was cut down, by amendment, with effect from 04.11.2016, to 30 days. From this two things are clear: one, whether in the original or unamended provision, there is no separate power to condone delay, as is contained in Section 20(3) of the Act; and second, that the period of 60 days was considered too long and cut down to 30 days thereby evincing an intention that review petitions, if they are to be filed, should be within a shorter period of limitation – otherwise they would not be maintainable.

23. Section 22(1) of the Act makes it clear that the Tribunal and the Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, making it clear thereby that Order XLVII Rule 7 would not apply to the Tribunal. Also, in view of Section 20, which applies to all applications that may be made, including applications for review, and orders being made therein being subject to appeal, it is a little difficult to appreciate how Order XLVII Rule 7 could apply at all, given that Section 20 of the RDB Act is part of a complete and exhaustive code. Section 34 of the Act makes it clear that the 1993 Act, (and, therefore, Section 20), will have overriding effect over any other law for the time being in force, which includes the Code of Civil Procedure. The High Court, in holding that no appeal would be maintainable against the dismissal of the review petition, and that therefore a writ petition would be maintainable, was clearly in error on this count also.”

In view of the above ruling, this Tribunal is powerless to condone the delay in filing the review and prays for dismissal of the IA for condoning the delay and consequently the Review Petition. However, on the merits it is submitted that no grounds of review is made. The matter in SA No.334/2022 was argued on the IAs as well as merits and the counsel was very much aware. Since there is no error apparent on the face of the record and there being no piece of evidence to be considered which escaped the attention of the Tribunal and further there being no mistake or reasons to entertain the review, the 1st Respondent prays for dismissal of the instant petition.

3.0 Having given careful thought to the submissions and the grounds urged for review, this Tribunal is to consider whether the matter was reserved for orders only on the IA as contended by the petitioner.

4.0 It is relevant to cull-out the chronology of the progression of SA No.334/2022, which is perused and is as under:-

(i) The order sheet speaks that on 10.11.2022, the matter was adjourned for arguments by 15.11.2022.

(ii) On 15.11.2022, it was posted for counter and arguments on IA by 16.11.2022.

(iii) On 16.11.2022 in the presence of both the counsel, the same was adjourned for counter and arguments on all the pending IAs and on the SA by 22.11.2022.

(iv) On 22.11.2022 again it was posted for hearing on all the IAs and the merits by 29.11.2022 at the request of the counsel.

(v) On 29.11.2022, the matter was heard in the presence of the counsel for the Applicant and all the Defendants. The matter directed to be put up for orders on all the IAs and on merits by 14.12.2022.

(vi) On 14.12.2022, it was reposted for orders by 21.12.2022.

(vii) On 21.12.2022 the final common orders pronounced on the IAs and on the main application and consequently SA No.344/2022 along with the IA was dismissed.

4.1 From the above chronology of events, it was consistently made clear that all the IAs filed in SA 334/2022 and the SA itself would be dealt together which was heard and disposed on merits. Therefore, the contention of the review Applicant that he was under an impression that the orders would be pronounced only on the IAs and not on the main petition is highly misconceived and opposed to the progression of the case noted above. This cannot be the ground for review.

4.2 The review petition does not disclose any other valid grounds for review. It does not point out any error apparent on the face of record. It does not speak of any evidence/document that escaped the attention of this Tribunal while disposing SA No.334/2022. There is no discovery of any new and important matter or evidence calling for review. The only ground made out is that the review applicant was under the impression that the matter was reserved for orders only on the IAs and not compositely on all the IAs and the merits cannot be a ground for review since the chronology of the case as given above would speak the facts. Hence there is no merit in the review petition. Consequently the following:

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RA No.2/2023 seeking review of the final orders in SA No.334/2022 disposed on 21.12.2022 stands dismissed. The MA No.4/2023 for condoning the delay in filing RA No.2/2023 also stands dismissed.

Sd/- (A.S.JAYACHANDRA)

PRESIDING OFFICER

DRT-I, CHENNAI

(Dictated to the PS on the system corrected, signed and pronounced by me on this 29th day of May, 2024)