B Munibyregowda and others vs AXIS BANK on 25 July 2022

1. The Miscellaneous Appeal [MA] No. 43/2020 is filed on 21.01.2020 aggrieved by the Order dated 03.11.2018 passed in OA. No.17/2017 by the Borrower (Applicant) who are the Defendant No.1 to 4 in OA. No.17/2017.

2. The applicant has filed the I.A. No.177/2020 under Section 22(2) (H) of the RDBI Act read with section 5 of the limitation and to condone the delay of 408 days in filing the M.A.

3. The applicants No.1 & 2 approached the respondent bank for financial assistance. The bank considered their request and sanctioned Agricultural Term Loan of Rs.16,00,000/- . The applicants No.3 & 4 stood as guarantors to the said loan.

4. The bank has filed OA.17/2017, it is contended by the applicant that OA.17/17 for recovery of Rs.14,05,951.89 Ps. The OA came to be allowed on 03.11.2018 which is not a speaking order on the interest and order is passed in very MA.43/2020 3

vague and not clear from the order. The order has been passed placing Defendants as Exparte. The present application is filed as the loan availed by the Agriculturists carrying on Agricultural operation and there was a drought in Doddaballapura District area. The bank has not issued any statement of accounts and have charged penal interest which is against code of Civil Procedure as the loan is agricultural loan, the applicants are willing to pay simple interest at 6% p.a. from the date of allowed. Admittedly, there is a delay in filing MA, hence the applicant has filed IA.177/2020 a petition to condone the delay of 408 days.

5. In the affidavit filed by the applicant, it is contended that the OA.17/2017 was ordered on 3.11.2018 exparte. The applicant came to know about passing orders exparte by this Court during first week of November 2019 and the present Miscellaneous Application is filed within 30 days from the date of knowledge of passing exparte order. Hence the appeal is well within the limitation. The delay in filing the Ma is not intentional and the applicants are not aware of filing of OA, issuance of summons and paper publication of MA.43/2020 4

summons, it would be put the applicants to irreparable loss. Hence, has prayed for the condonation of delay. Heard the submissions of the Applicant counsel and perused the records.

6. The applicants are borrowers and guarantors have availed the Agricultural Term Loan of Rs.16,00,000/- vide sanction letters dated 17.09.2010. There is no dispute about the availing of the credit facilities, the execution of the loan documents and creation of the mortgage of the collateral security towards the credit facility availed by the applicants.

7. It is pertinent to note that the applicants herein did not contest the OA, hence the claim of the bank was allowed based on the documents and evidence adduced by them in the OA.17/2017. Further, it is seen from the records of the proceedings in the OA, that summons were sent and served on the Defendants through RPAD. In spite of service of the summons as the defendants failed to appear before the Tribunal nor contested the matter, the defendant No.1 to 4 se as exparte and the OA came to be allowed on 3.11.2018 directing the bank to recover OA claim along with interest.

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8. The contention raised in the MA in respect of the charge of the interest and the loan is a matter to be consider in the appeal admitted by order dated 03.11.2018. The applicant relies on the judgment in respect of the charge rate of interest. The agricultural loan is also matter to recorded to be adjudication in an appeal.

9. In the instant application the only contention raised with regard to the charge of the interest at a higher rate and averments in the nature of an appeal and cannot be entertained in the present MA. Furthermore, there is a delay of 408 days and only contention as is that he came to be known only on first week of November 2019 and applied for the certified copy. However, the applicant is not explaining each days delay and reason for not approaching Tribunal within period of limitation.

10. The applicant has also relied on the judgment passed by the Supreme Court in Dwarikesh Sugar Industries Ltd., Appellant Vs Preme Heavy Engineering Works (P) Ltd., and another, Respondents. AIR 1997 Supreme Court 2477; ILR 1987 Karnataka 2844, Supreme Court, Collector, Land Acquisition Vs Ms. Katiji.

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11. In the instant matter applicant has not given any valid and bona fide reasons nor made out sufficient cause for the delay in filing the application, where in the applicant is required to explain each and every day’s delay as mandated under Section 5 of the Limitation Act and in absence of any justifiable case for condonation of 408 days delay needs no further consideration of this Tribunal and it is settled position of law that each days delay has be justified or a proper cause be made out to condone the delay.

12. Sub-section (24) of S.19 of the Recovery of Debts and Bankruptcy Act 1993 prescribes the time-limit of 180 day within which an application made under S.19 is required to be disposed of. The proviso to this sub-section envisages extension of time, but the outer limit for adjudication of an application is six months. It is thus evident that the remedies available to an aggrieved person under the Act are both expeditious and effective.

13. It is axiomatic that condonation of delay is a matter of discretion of the Court. However, while there is no sufficient cause assigned by the petitioner for the inordinate delay of 408

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days without there being a locus in preferring the application praying to set aside the final order passed in the OA.

14. Additionally, it is the established legal position that an ex-parte order against defendant has to be set aside if the party satisfies the court that summons had not been duly served or they was prevented by sufficient cause from appearing when the suit was called on for hearing; however, the court shall not set aside the said order on mere irregularity in the service of summons or in a case where the defendant had notice of the date and sufficient time to appear in the court.

15. It is pertinent note that the applicants herein being aggrieved by the final order passed by the Tribunal under S.19 of the RDDBFI act ought to have challenged the final order before the Appellate Tribunal or to have filed petition to set aside the final order within the period of limitation as prescribed under the Act before this Tribunal. The delay in filing an application to set aside the exparte order does not support their case and no iota of proof has been put forth by them to substantiate their contentions.

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16. For the foregoing reasons, the Tribunal finds no ground or any prima facie case to condone the delay of 408 days. Accordingly, IA.177/2020 a petition to condone the delay stands dismissed. Consequently, MA.No.43/2020 also stands dismissed. Pending IA/s if any also dismissed. No order as to costs. (Dictated to the Steno (PR), after her transcription and necessary corrections, signed and pronounced by me in the Open Court on this 25th day of July, 2022)

Sd/- (S.V. GOWRAMMA) PRESIDING OFFICER

DRT-2, BENGALURU