BALAJI ENTERPRISES vs INDIAN BANK on 7 August 2024

1. Mrs. Bharathi

W/o Ramanatha Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

2. Mr. Ramanatha Naidu

S/o Harikrishna Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

…Petitioners / Defendants 3 and 10

Versus

1. Indian Bank

Ethiraj Salai Branch

Chennai – 600 008

Now transferred to

Indian Bank

Asset Recovery Management Branch

No.55, Ethiraj Salai

Chennai – 600 008

2. M/s Balaji Enterprises

Prop. Vijayanallendran

Q Circle, No.114, Poonamallee High Road

Chennai – 600 094

3. Mr. R. Mahalingam

No.3/20, Manali New Town

Chennai – 600 103

4. Mrs. Kuppamal

W/o Subba Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

5. Mr. Subramaniam

S/o Madurai Gounder

K.N. Kandigai – Aladu Village

Ponneri Taluk

6. Mrs. Rosammal

W/o Govinda Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

7. Mr. Rajagopal Naidu

S/o Harikrishna Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

8. Mr. Aruthiran

S/o Harikrishna Naidu K.N. Kandigai – Aladu Village

Ponneri Taluk

9. Mr. Jayarama Naidu

S/o Harikrishna Naidu

K.N. Kandigai – Aladu Village

Ponneri Taluk

10. Mr. B. Rajkumar

K.N. Kandigai – Aladu Village

Ponneri Taluk

…Respondent Nos.2 to 10 /

Defendants 1,2, 4 to 9 & 11

: ORDER IN MA NO.197 OF 2023 :

1. The defendants 3 and 10 respectively, in the disposed OA No.795/1998, which was allowed by the final orders by the Ld. Predecessor vide order dated 18.07.2016 have filed the present MA seeking condoning the delay of 2863 days in filing a separate petition for setting aside the ex-parte final orders, which is yet to be numbered.

2. The present petition seeking condoning the delay is supported by the affidavit filed by the 3rd defendant.

Brief Facts

3. The contention of the defendants 3 and 10 are as follows: -

(i) They appointed defendant no.2 as there GPA holder vide Document dated 2.7.1990 for developing their plots and to sell the same.

(ii) The GPA holder had mortgaged the properties of these defendants and that of defendants 4 to 9 without their knowledge and misused the GPA.

(iii) The GPA did not empower the agent to mortgage the properties.

(iv) They were shocked to receive a notice from DRT and came to know of the OA, in which one Mahalingam (Defendant No.2 in the OA) had deposited the title deeds and created the mortgage (the date of such knowledge of shocking revelation is not pleaded).

(v) The applicant bank sanctioned the loan without verification of the title deeds and these defendants are neither the borrower nor guarantors for the loans availed by defendant No.1 Balaji Enterprises.

(vi) Summons were not received in OA 795/1998 and the applicant bank had mentioned that defendants 3 to 10 were represented by the PA holder. The same is legal.

(vii) Defendants 3 & 10 visited Tirupati in the year 2003 and defendant No.10 went missing. A police complaint was filed and defendant No.3, being the wife of defendant No.10 was under mental trauma.

(viii) The defendants No.3 is illiterate. She received the notice from DRT on 14.08.2023, which is dated 24.07.2023.

(ix) Accordingly, she reached the Tribunal on 14.9.2023 with the help of daughter and granddaughter and on that she came to know that recovery proceedings are initiated for the loan availed by defendant No.1 Balaji Enterprises. Thereafter, she applied for certified copies.

(x) After applying she was often falling ill and only after recovery she engaged the counsel to file the present petition.

(xi) The delay is neither willful nor wanton but for the above reasons.

With these pleading the applicant prays for condoning the delay of 2863 days.

3. The matter was placed before the Tribunal seeking the advance hearing from 12.09.2024 to 1.8.2024.

4. When the matter came up before the Tribunal on 1.8.2024 for hearing on the instant petition, the Ld. Counsel for the applicant bank (respondent No.1 in the MA) had filed a detailed counter along with documents.

5. Since the other respondents in the MA being defendants 1, 2, 4 to 9 and 11 are only formal parties, notices are dispensed in the peculiarity of the prayer which affects the defendant No.1 only. The matter was heard.

Contentions of the bank opposing the MA

6. The counter affidavit is filed by the bank. It is submitted that the deponent had no authority or locus to speak for defendant No.10. The specific denials are as under: -

(i) The GPA dated 2.7.1990 admitted is not cancelled, which empowered the PA holder to sell the properties.

(ii) The PA holder having sold the property on 20.12.2006 duly registered, cannot be now retracted.

(iii) After such title she further conveyed title to the extent of 15 cents in favour of R. Mahalingam (Defendant No.2).

(iv) The averments in the petition is denied. The 3rd defendant was aware about the acts of her agent.

(v) The 3rd defendant was aware of the proceedings and one R. Karunakaran undertook to file the vakalat and accordingly the same was posted for filing the written statement by 29.01.1999. On that date one Jothiraman filed vakalatnama for defendants No.1 and 2. The rest of the defendants were placed ex-parte.

(vi) The allegation that she came to know about the decree only on 14.08.2023 is incorrect.

(vii) Once the Principal conveyed the property, no subsisting interest remains.

(viii) There is no proper explanation from the date of the alleged information about the proceedings on 14.8.2023 till the filing of the application i.e., 18.06.2024, no valid explanation for delay is forthcoming.

(ix) The merits of the case cannot be considered for disposal of the petition seeking condoning the delay.

(x) The defendant No.11 had challenged the final orders in RA (SA) 159/2015 and the same was dismissed by the Hon'ble DRAT.

(xi) The delay for nearly 24 years is not explained.

Therefore, the bank seeks dismissal of the MA.

7. Heard the Ld. Counsel appearing for the MA petitioners and the contesting respondent – bank. Perused the pleadings and the documents filed by the bank.

Point for Determination

8. In the context of the submissions made at the bar the only point that arises for determination in these proceedings is whether the MA petitioners establish the “sufficient cause” to condone the delay of 2863 days or not?

9. The Ld. Counsel for the petitioners urge that the 1st petitioner is an illiterate lady and that she was under trauma during the year 2003 when her husband went missing during the pilgrimage to Tirupati. Further, it is also pleaded that she came to know about the proceedings only in the year 2023. She had taken all the necessary and prompt steps upon the date of knowledge of the proceedings after receiving the notice from the Tribunal by its Recovery Officer. Therefore, he submits that delay may be condoned. He relies on the ruling of the Hon'ble Supreme Court in “N. Balakrishnan vs. M. Krishnamurthy” ((1998) 7 SCC 123). The Hon'ble Supreme Court had held that in the absence of showing anything malafide or deliberate delay as a tactic the court should normally condone the delay, however, while doing so, the Court should also keep in mind the consequent litigation expenses. The condonation of delay is a positive exercise of discretion. The Ld. Counsel also submits that the length of delay is no matter and the discretion is vested with the Tribunal.

10. On the other hand, the Ld. Counsel for contesting respondent – bank is vehement in submitting that this application is coming after 26 years and the delay is not properly explained. The OA was decreed in the year 2016 and the copies of the final order were also served on the defendants in the OA and there is no mention in the pleading with regard to non-service of the copies of the final orders.

11. The Ld. Counsel for the bank relied on the ruling of “Union of India and Another vs. Jahangir Byramji Jeejeebhoy(D), Through His LR” (CDJ 2024 SC 27) to urge that while considering the plea for condonation of delay the Court must not start with the merits of the main order and the court owed a duty to first ascertain the bonafides of explanation offered by the party seeking condonation. He also relies on the unreported ruling of our Hon'ble High Court in CRP (NPD) No.2953/2011 (DD 4.6.2013) in the matter of Padmavathi & Others Vs. D. Mariappan, where it is held that whenever the property is sold by one to another person, such party who sold the property does not have any subsisting right to maintain the revision.

12. After careful perusal of the contentions raised by the parties, this Tribunal had gone through the grounds urged in the petition for condoning the delay. It is at the cost of repetition this Tribunal is constrained to note that after the service of the final orders, which was passed on 18.7.2016, there is no mention about non-service of the final orders. The practice and procedure of the Tribunal is found in the final order itself wherein it was directed that the final order be communicated to the parties concerned. The petitioner has not whispered anything with regard to the communication / non-communication of the final orders. The petitioners are approaching this Tribunal nearly after 8 years of the final orders. The ground that the husband of the 1st petitioner went missing during the pilgrimage in the year 2003 would become obsolete for any consideration in the backdrop of the final orders having been passed in the year 2016. From the pleadings this Tribunal does not find any reason or explanation for the delay from the year 2016 up to the date of this petition i.e., 18.6.2024. The ground that she is from a small town Ponneri and that she is an illiterate cannot be a ground to seek condonation of delay, when the delay is not properly explained. It also becomes improbable to believe that she was not served with the final orders when she pleads at the same point that notice from the recovery officer was received by her on 14.8.2023. If there are no cogent and acceptable reasons which can justify the delay, the Tribunal cannot be persuaded to sail with the petitioners in condoning the delay, that too, inordinate delay of 8 years.

13. The main grounds on which the condonation of delay is sought are explained in the foregoing paragraphs, which need not be repeated again. The contention that she fell ill after applying the certified copies is not supported by any medical certificate or documents to show that she is a chronic patient. It is also not found from the pleadings that after the date of information of the proceedings on 14.8.2023 till the filing of the application on 18.6.2024 what

prevented the defendants 3 and 10 to approach the court. It is expected of these petitioners (defendants 3 and 10) to explain and put forth the justifiable and reasonable or plausible circumstances by which these petitioners were prevented or refrained from taking steps in this period during 14.8.2023 till 18.6.2024. This silence on the part of these petitioners to explain the delay atleast for this period is glaring and is opposed to the human conduct for any person receiving the notices from the Court / Tribunal or quasi judicial authority would be put into consternation and steps are expected a normal person to respond to such information and proceedings. When it is pleaded that she came to the Tribunal on 14.9.1993, the immediate steps taken or ought to have been taken are not forthcoming from the pleadings. Therefore, the ruling relied by the Ld. Counsel for the petitioners wherein it is clearly held that in the absence of showing anything malafide or deliberate delay as a tactics being a condition to seek condoning the delay is not made out from the pleadings nor the conduct of the petitioners becoming eligible for condoning the delay. This Tribunal does not find any reasons to find the absence of malafide and deliberate delay. As rightly contended by the Ld. Counsel for the bank in pursuance of the ruling of Union of India (supra) the merits are not discussed. Suffice to say that the petitioners has not made out the sufficient ground for condonation of delay and this Tribunal does not find any justifiable excuse or circumstances to condone the delay. Accordingly, the following order is passed:-

“MA No.197/2024 stands dismissed. Consequently the unnumbered application for setting aside the final order dated 18.07.2016 (MA Dy No.2128/2024) also stand dismissed. Parties to bear their own costs.”

Sd/- (A.S.JAYACHANDRA) PRESIDING OFFICER (In-charge) DRT-I, CHENNAI

(Dictated to Assistant who typed in the system, corrected, signed and pronounced in open court on this 7th day of August 2024)