STATE BANK OF INDIA vs Sri. G.Somashekar on 10 December 2024

**: COMMON ORDER:**

The petitioners/applicants filed the Interlocutory Application (IA No. 1481/2024) on 14.08.2024 praying to condone the delay of 875 days in filing the Miscellaneous Application (MA) No. 28/2024. The MA No. 28/2024 has been filed by the legal heirs of the deceased Defendant in the O.A No. 252/2017 with a prayer to set aside the Order dated 22.02.2022 passed in OA No. 252/2017 and to restore the same permitting the applicants in the MA No. 28/2024 to prosecute the matter.

2. The averments set out in the notary attested Affidavit of the Petitioners/Applicants accompanying the IA No. 1481/2024 for condoning the delay, in brief:- (a) The applicant No.1 has filed the present I.A stating that she knows the facts of the case and she is swearing to this affidavit on her behalf and also on behalf of the other applicant Nos. 2 & 3, who are her sons and LRs of the deceased borrower.

(b) The applicant No.1's husband Sri. G. Somashekar (now deceased) is the borrower to the loan availed from the respondent bank. Sri. G. Somashekara died on 26.03.2023 due to ill health.

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(c) The applicant No.1 stated that she is not aware of any transaction done by the deceased borrower G. Somashekara with the respondent bank, but in fact after his death, the applicants have received summons in Recovery Certificate (RC No. 155/2022) on 05.07.2024.

(d) Applicant No.1 states that she came to know about the order dated 22.02.2022 passed against the deceased borrower in OA 252/2017 by the Tribunal recently on receipt of the notice of recovery in RC 155/2022. Hence she preferred the present petition for condoning the delay of 875 days (from the date of order dated 22.02.2022 in O.A No. 252/2017)

(e) It is found that from the date of the final order the alleged delay seems to be amounting to 875 days in preferring this application. The applicant No.1 submits that the present application is well within the limitation from the date of knowledge on the 1^st instance of Notice of recovery in RC No. 155/2022 on 05.07.2024.

3. Despite due service of summons to the respondent bank and sufficient opportunity given, respondent bank failed to file their objections.

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4. As the issue of limitation has to be decided at the first instance, this Tribunal deems it fit to take up the IA 1481/2024 (Delay condonation application) as held by the Hon'ble High Court, Allahabad in the case of "**Sunil Kumar Vs. State of U.P. 2016 (6) All. LJ 626**," that the application cannot be decided on merits, unless the delay is condoned.

5. The point arises for consideration is, whether the petitioners/applicants are entitled to the relief as prayed for in IA No. 1481/2024 for condoning the delay of 875 days?

6. The applicants, aggrieved by the final order passed in OA No. 252/2017 by this Tribunal on 22.02.2022 have filed the Miscellaneous Application (MA 28/2024) to set aside the said final order; to restore the OA No. 252/2017 and to allow the applicants to prosecute the matter.

7. The applicants ought to have preferred this miscellaneous application before the Tribunal within the prescribed period of limitation but the instant application was filed only on 14.08.2024 admittedly with a delay of 875 days in presenting the same before this Tribunal. Hence the applicants have filed I.A No. 1481/2024, a petition to condone the delay. The issue for consideration is whether the applicants have made out a case to condone the delay of 875 days in filing the application.

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8. The applicants contended that they had no knowledge about the final order passed in OA No. 252/2017 since they are not parties to the OA and came to know the proceedings only on receipt of the Recovery Notice on 05.07.2024 in RC No. 155/2022.

9. It is pertinent to mention here that the borrower G. Somashekara (since deceased) availed loan facility from State Bank of India (respondent bank), defaulted in the repayment of loan; the respondent bank initiated recovery proceedings under Section 19 of the Recovery of Debts and Bankruptcy Act and vide O.A No. 252/2017 against the deceased borrower Mr. G. Somashekara for recovery of sum of Rs. 20,91,698/- (Rupees Twenty lakh Ninety One Thousand Six Hundred and Ninety Six Only) before this Tribunal. The deceased borrower contested the matter in O.A NO. 252/2017 by filing the Written Statement.

10. OA No. 252/2017 came to be allowed vide a considered order dated 22.02.2022 allowing the respondent bank to recover a sum of Rs. 20,91,696/- from the borrower. Sequel to the above final order passed in OA No. 252/2017, RC No. 155/2022 was issued; demand notice dated 20.06.2022 was issued to the defendant (Certificate Debtor) directing to pay Rs. 20,91,696/- within 15 days from the receipt of the notice, failing which the recovery shall 6MA.No.28/2024

be made in accordance with the Recovery of Debts and Bankruptcy Act, 1993 and the Rules thereunder.

11. Recovery Proceedings reveal that on 22.09.2022 the Counsel for the Borrower (now deceased) appeared before the Recovery officer and submitted that the borrower is in touch with the Bank for OTS with the bank and sought for three months' time. Further on 30.11.2023, the Counsel orally submitted before the Ld. Recovery Officer that the borrower is reported "dead".

12. The bank (Certificate Holder in RC No. 155/2022) appeared before the Recovery Officer on 28.06.2024 and filed I.A No. 108/2024 to bring the LRs of deceased borrower, which was allowed and the Recovery Officer issued notice to LRs of the deceased borrower on 28.06.2024.

13. It is the case of the applicants that they came to know about the final order passed in OA No. 252/2017 only when the Recovery Officer issued the notice dated 28.06.2024 which they allegedly received on 05.07.2024, and alleged that, from the date of their knowledge there is no delay.

14. On perusal of the proceedings in RC No. 155/2022, it is seen that applicant No.1 in the present Miscellaneous application had engaged the counsel Mr. K.P Poovanna way back in the year 2023

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i.e, the counsel on record for the deceased borrower had filed vakalath for deceased borrower's wife (1^st applicant herein) on 14.12.2023 itself, which amply proves that the applicant No.1 was aware of the recovery proceeding as early as 14.12.2023 before the Recovery Officer. Therefore, it is incorrect to say that she had knowledge of the proceedings only on 05.07.2024 on receipt of the recovery notice.

15. On perusal of the postal track reports produced by the certificate holder bank on 02.08.2024 in RC 155/2022 (respondent herein), it is seen that the LR Notices sent to the applicants were delivered to applicants respectively on 08.07.2024 in respect of Applicant No.1, 03.07.2024 in respect of Applicant No.2 and 08.07.2024 in respect of Applicant No.3. The applicants ought to have preferred the application on or before 07.08.2024. However, the applicants have filed the present application (MA 28/2024) only on 14.08.2024 with a delay. Looking into all the angles, the grounds stated in the Affidavit accompanying IA No. 1481/2024 for condoning the enormous delay of 875 days in presenting the MA is not acceptable by any stretch of imagination. In the instant case, the final order dated 22.02.2022 has been passed by this Tribunal after taking into consideration the objections raised in the Written Statement filed by the borrower defendant (now 8MA.No.28/2024

deceased). Consequent to the final order, Recovery Certificate (RC No. 155/2022) came to be issued and the defendant himself (now represented by his LRs) filed Vakalath through counsel M/s. K.P. Poovanna & Associates on 21.09.2022 before the Recovery Officer.

16. It is also pertinent to note that as per ANNEXURE A-1 copy of the death certificate of the borrower G.Somashekara reflects that the date of death of the borrower as 26.03.2023. The OA No. 252/2017 was contested by the deceased borrower as a Defendant by filing the written Statement and a considered order was passed by this Tribunal on 22.02.2022, even after the initiation of the recovery proceedings before the recovery officer in RC 155/2022 when the demand notice was issued on 20.06.2022 the borrower was alive and has filed reply on 21.09.2022 through his advocate. Therefore, the borrower/defendant having contested the case, a considered order has been passed by the Tribunal, the question of reopening the case does not arise before this Tribunal.

17. Section 29 of the Recovery of Debts and Bankruptcy Act 1993 deals with the application of certain provisions of Income tax Act and the relevant portion is extracted below:

9MA.No.28/2024**"29. Application of certain provisions of Income Tax Act**

*The provisions of the Second and third Schedules to the Income Tax Act, 1961 (43 of 1961), and the Income Tax (Certificate Proceedings) Rules, 1962, as in force from time to time shall, as far as possible, apply with necessary modifications as if the said provisions and the rules referred to the amount of debt due under this Act instead of the Income Tax Act.*

*PROVIDED that any reference under the said provisions and the rules to the "assessee" shall be construed as a reference to the defendant under this Act."*

As per the Second Schedule to the Income Tax Act 1961, the following rules are relevant:

**Officers deemed to be acting judicially.**

*82. Every [Chief Commissioner of Commissioner], Tax Recovery Officer or other officer acting under this Schedule shall, in the discharge of his functions under this Schedule, be deemed to be acting judicially within the meaning of the Judicial Officers Protection Act, 1850 (18 of 1850).*

**Continuance of certificate.**

*84. No certificate shall cease to be in force by reason of the death of the defaulter.*

**Procedure on death of defaulter.**

*85. [If at any time after the certificate is drawn by the Tax Recovery Officer] the defaulter dies, the proceedings under this Schedule (except arrest and detention) may be continued against the legal representative of the defaulter, and the provisions of this schedule shall apply as if the legal representative were the defaulter.*

18. Therefore, the applicants have not made out any ground for condoning the delay and the Tribunal is not inclined to condone the delay even on equitable grounds. The Tribunal's view is justified in view of the judgement of Hon'ble Supreme Court in the case titled Lingeswaran vs Thirunagalingam | SLP 2054- 2055/22 wherein it is held that the Limitation period cannot be extended on equitable grounds.

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19. Accordingly, IA No. 1481/2024, the petition to condone the delay of 875 days deserves to be dismissed and hence, the same is dismissed. Consequently, MA No. 28/2024 also stands dismissed. Interim order, if any granted and subsisting till this day stands vacated. Pending I.A,s if any stand disposed of in terms of this Order. No order as to cost.

*(Dictated to the Stenographer (Anu), after its transcription and necessary corrections, signed and Order is passed on this day 10^th Day of December, 2024)*

**[IMTIAZ ALI]** **PRESIDING OFFICER I/c** **DRT-2, BENGALURU**

APPENDIX

LIST OF DOCUMENTS PRODUCED BY THE APPLICANTS

<table border="1"> <thead> <tr> <th>Sl. No</th> <th>Description</th> <th>Annexure</th> </tr> </thead> <tbody> <tr> <td>1.</td> <td>Copy of death certificate</td> <td>A</td> </tr> <tr> <td>2.</td> <td>Typed copy of death certificate</td> <td>A-1</td> </tr> <tr> <td>3.</td> <td>Copy of the final order dated 22.02.2022</td> <td>A-2</td> </tr> <tr> <td>4.</td> <td>Copy of the notice issued by recovery officer dated 28.06.2024</td> <td>A-3</td> </tr> </tbody> </table>

**[IMTIAZ ALI]** **PRESIDING OFFICER I/c** **DRT-2, BENGALURU**